[HN Gopher] Court Ruling shows the GPL is both copyright license...
___________________________________________________________________
Court Ruling shows the GPL is both copyright license and
contractual agreement
Author : pabs3
Score : 224 points
Date : 2022-05-16 16:15 UTC (6 hours ago)
(HTM) web link (sfconservancy.org)
(TXT) w3m dump (sfconservancy.org)
| [deleted]
| mistrial9 wrote:
| michaelmrose wrote:
| This isn't as clear as you imagine.
| iso1631 wrote:
| It's always seemed to me that IP laws state you can not copy
| copyright material and use it (outside of a few specific fair
| use cases), unless you have permission from the person who
| owns the copyright.
|
| I don't see why the Linux kernel is any more or less covered
| by that than say the Windows kernel or Avengers Endgame
|
| Now I can see arguments about whether loading such code into
| memory is "copying" it or "using" it, but I think everyone
| agrees that you can't take 30 minutes of avengers, or half
| the windows or linux code, and incorporate it into your
| product, unless you have permission of the person who owns
| the copyright.
|
| The GPL is an offer to allow you to do things with the
| copyrighted code if you maintain certain specific. You don't
| have to accept that, you're then just covered under copyright
| (no copying, reproducing small amounts for review or critique
| is fine, selling it to someone else is fine, etc)
|
| Arguably you could use it even if that involves transitory
| copying of the code into memory, arguably you can modify that
| code to yourself as long as you don't copy it (presumably
| that means you have to accept that "to copy" doesn't mean
| loading it into memory, or even moving it from one disk
| sector to another, etc)
|
| But the principles of copyright law and how various
| microsoft, gnu, linux, and disney licenses can apply to give
| you more rights has always been clear to me.
|
| However what's interesting in this case, and what I would
| agree isn't clear, is the person bringing the case isn't the
| copyright owner though. If someone sells you stolen goods,
| can you sue them?
|
| > 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.
| bdowling wrote:
| > However what's interesting in this case, and what I would
| agree isn't clear, is the person bringing the case isn't
| the copyright owner though.
|
| You're right, which is why SFC's case is entirely a
| contract law case. SFC argues (1) the GPL is a contract
| between the software creator and Vizio, (2) Vizio has a
| contractual obligation to publish their modified source
| code, and (3) SFC has the right to sue because they are a
| third-party beneficiary of that contract.
|
| Here, this decision only states that SFC's contract claims
| aren't preempted by the Copyright Act and therefore the
| case belongs in state court. The case was originally
| brought in state court, but Visio successfully argued that
| SFC was essentially making a copyright law claim disguised
| as a contract claim, and therefore the case belonged in
| federal court. (Edit: I haven't reviewed all the filings,
| so I may be mistaken about the procedural posture here.)
|
| So, now it's back to state court where the court will
| decide whether there is any merit to the contract claims.
| dragonwriter wrote:
| > The case was originally brought in state court, but
| Visio successfully argued that SFC was essentially making
| a copyright law claim disguised as a contract claim, and
| therefore the case belonged in federal court.
|
| Vizio _unsuccessfully_ argued that: this is the decision
| on Vizio's attempt to remove the case to federal court,
| which SFC opposed.
|
| (The nature of removal is such that it always "succeeds"
| in the limited sense that the removal itself is a federal
| question resolved in federal court, but Vizio never
| succeeded in convincing any court that the case should be
| removed.)
| bdowling wrote:
| Ah, you're right. The initial filing by Visio would be a
| notice of removal. There is no argument or decision by
| the court on the notice. SFC responds by filing a motion
| to remand, which is what this decision relates to.
| mistrial9 wrote:
| could a YNews moderator or other knowledgable person here
| please explain why my opinion above is now marked 'flagged' ?
| andrewxdiamond wrote:
| Get enough downvotes fast enough and it gets flagged
| dang wrote:
| No, flags and downvotes are independent. [flagged] means
| users clicked 'flag'.
|
| Sometimes moderators also add [flagged] to a post, but
| much less often, and we didn't do that here.
| mistrial9 wrote:
| thx dang, perhaps it was lazy of me but I did not intend
| to break guidelines here
| gpm wrote:
| Mechanically any user with sufficient karma can click
| "flag" on comments, enough people clicking that and it
| get's flagged and people without show dead on it don't see
| it.
|
| I didn't flag your comment, but I came very close to doing
| so.
|
| Personally I couldn't figure out what you were trying to
| say. What am I supposed to be deciding for myself? Are the
| organized groups you're referring to companies trying to
| use GPL code without a license? Groups trying to use the
| GPL as a tool to get access to other companies closed
| source code? IP lawyers trying to make a profit? Something
| else?
|
| Flagging nonsense (as in literally not-understandable
| comments) seems like the right thing to do to me. I would
| have flagged it over that, but for michaelmrose's reply
| that indicated that they at least managed to parse your
| comment.
|
| I'm also generally very wary of the phrase "decide for
| yourself", it's not objectively incorrect, but it comes
| across as asking people to ignore better informed people's
| opinions, which is the exact opposite of what you should do
| when reading comment sections on the internet.
|
| I think another commenters point that you're making fairly
| baseless accusations against people who like the GPL might
| be correct, but that didn't weigh in to my decision to flag
| it or not because I honestly didn't (and still don't)
| understand your comment. If I agreed with them that that is
| what your comment was doing, I would have been more likely
| to flag it - because insulting groups of people rarely
| leads to fruitful discussion.
|
| Hopefully that helps...
| [deleted]
| a_t48 wrote:
| It's not up to the moderators. It's likely because you made
| a fairly baseless accusation about people who prefer GPL.
| cassepipe wrote:
| If your question is about what the flagged label is about :
| https://news.ycombinator.com/newsfaq.html
| chmod775 wrote:
| Possibly because punctuation, capitalization, and
| miscellaneous mistakes make the comment really hard to
| parse. Some people may just give up and regard the comment
| as what it "smells" like: The type of troll comment you
| often see on HN.
|
| Even allowing for that it is worded rather... inciteful.
|
| I parsed your comment as: "Some organized people will take
| advantage of GPL software, very few care and are willing to
| defend it, while the vast majority are indifferent. I do
| not intend to elaborate."
| mistrial9 wrote:
| I thought it was provocative to choose a side, yes, as in
| "anti-indifferent" ... I did not intend or even see it as
| 'troll' ..
| michaelmrose wrote:
| I didn't consider it flag worthy personally I thought it
| was merely unclear and needed clarification as to what you
| were asserting.
| mistrial9 wrote:
| yeah - it was lazy and sort of political.. that's true
| and in hindsight maybe not helpful (downvotes) but to be
| 'flagged' means it broke some guidelines, which I doubt.
| It does need clarification, agree.
| pvg wrote:
| flagged just means enough users flagged it. Most tossed-
| off one-liners are eminently flaggable because they break
| the hn prime directive of 'curious conversation'.
| RcouF1uZ4gsC wrote:
| > "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.
| tempnow987 wrote:
| 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.
| 8ytecoder wrote:
| That was always the case. This simply alters who can enforce
| it.
| ChuckMcM wrote:
| 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 wrote:
| > 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?
| bluGill wrote:
| > Is it really that common for companies to violate the GPL
| today?
|
| Every company I've worked at is careful about GPL. Some are
| more careful than others, but they all put at least some
| effort into ensuring nobody brings in GPL libraries.
|
| As a lawyer explained to me, they understand at some point
| GPL code will be shipped - it is too tempting. The real
| goal is to ensure that when it happens they can convince
| the courts it is a rouge employee doing something he wasn't
| supposed to, as then the penalty is a slap on the wrist and
| a bunch of developers emergency switched to rid our stuff
| of GPL. If the courts decide the company didn't do enough
| to prevent infringement then the court will decide that it
| was company policy to make their product open source and
| the courts will force the release of source code. This is
| why all developers I work with have to take open source
| training, we have someone assigned to audit all our code,
| and we have bought tools that look for potential open
| source code, it all builds a case before the court. To my
| knowledge the above as kept us from infringing in the first
| place, which is the real goal, but since all tools have
| holes eventually we can assume it won't.
| riskable wrote:
| > 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_ wrote:
| 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.
| phkahler wrote:
| >> 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.
| tzs wrote:
| > 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.
| phkahler wrote:
| Oh my bad. The wording is per infringement, which does seem
| to mean per work rather than per copy. That makes it
| perfect for going after individuals but not corporations -
| because it's peanuts to them.
| tzs wrote:
| It might be peanuts if it was a one-time thing, but if
| they kept infringing I would expect they could be sued
| again for the additional infringements.
|
| Statutory damages in the US start out in the $750-30000
| range, and can be raised up to $150000 in the case of
| willful infringement. The burden of proving willfulness
| is on the plaintiff, but that shouldn't be too hard if
| the defendant already lost once and is continuing to
| infringe.
|
| I'd expect courts to start going higher and higher up the
| range for damages the more times they see the same
| defendant losing for continued infringement of the same
| work.
|
| I'd expect that this would get the defendants to start
| complying with the license and release the source.
| bluGill wrote:
| Companies should be more worried about injections than
| infringement. Sure they might pay court fines, but courts
| can also order them to stop infringing immediately.
| Continuing to infringe after a court order is a very
| different issue, and isn't about copyright law it
| anymore.
| goodpoint wrote:
| > 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.
| messe wrote:
| In California.
|
| EDIT: I'm wrong and need to pay more attention. See comments
| below.
| michaelmrose wrote:
| 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 wrote:
| Different things are available in different states all the
| time.
| [deleted]
| gurjeet wrote:
| 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.
| [deleted]
| tedivm wrote:
| 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 wrote:
| > 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.
| bluGill wrote:
| > This will end up in the Appellate.
|
| Maybe, but that isn't clear. They will try to appeal, but
| it isn't clear if the appeals court will accept the appeal.
| If the court doesn't accept the appeal, then all courts
| will be informed about this for future cases as lawyers try
| to build their case before whatever court they are in front
| of. If it is appealed, then whatever the final appeal
| result is will win (final appeal can be different in
| different courts so there could be conflicts until the
| supreme court takes this.).
|
| My guess is the appeals court won't take this. Just a guess
| though.
| redleader55 wrote:
| 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 wrote:
| 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.
| not2b wrote:
| 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.
| StayTrue wrote:
| 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).
| dragonwriter wrote:
| (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...
| bdowling wrote:
| 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.
| nightpool wrote:
| 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).
| kazinator wrote:
| 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.
| danielheath wrote:
| > 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.
| kazinator wrote:
| OK, but in these cases, the contract itself spells out the
| this-for-that. The actual exchange of this for that doesn't
| have to commence for the contract to be binding; but
| without it being spelled out in the contract, it's not a
| contract.
|
| E.g. we can't sign a document which says I will mow your
| lawn every Wednesday, April to October and call it a
| contract. It's missing the compensation clauses, so it's
| saying the mowing will be free of charge. The GPL is one-
| sided in that it spells out that some receiving user's
| rights are to be upheld in such and such a ways, without
| requiring that user to lift a finger. It's like the free
| lawn-mowing document in that sense.
|
| But, obviously, that part of it will come from some larger
| umbrella contract whereby the user is sold the software.
| Those parts of the GPL which resemble contract clauses
| should be effectively absorbed into that sales contract.
| According to the larger contract, the user paid for the
| software, and so the counterparty is bound by the GPL
| clauses contractually. (Or so it would seem is the court
| decision here.)
|
| I doubt that the court decision means that if you give
| someone a Debian DVD-ROM at a party (let's pretend for a
| second people still do that) you are now obliged to do
| additional things for them by a contract.
| [deleted]
| pdabbadabba wrote:
| > 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.]
| sirius87 wrote:
| 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 wrote:
| 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...
| unnah wrote:
| 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 wrote:
| 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
| JJMcJ wrote:
| 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 wrote:
| 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?
| JJMcJ wrote:
| 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...
| tempnow987 wrote:
| 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).
| riskable wrote:
| 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 wrote:
| 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.
| servilio wrote:
| Someone with enough knowledge to provide the proof would
| still need to be involved, but it doesn't have to be the
| original developer(s).
| e3bc54b2 wrote:
| 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.
| fluoridation wrote:
| 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.
| contravariant wrote:
| This is something that's always been slightly unclear to
| me. I think you should be able to do whatever with any
| copyrighted code that's been published (by someone who has
| the right to do so) for your own personal use, regardless
| of license. Clearly publishing this copyrighted is not
| possible without some kind of license.
|
| However where 'personal use' ends and 'publishing
| copyrighted code' begins is not entirely clear to me. Does
| an internal tool in a company still count?
| fluoridation wrote:
| > Does an internal tool in a company still count?
|
| I would think so, yes. If I take a piece of information
| and do something to it inside my house, that's my
| business. If I show it to my friend, it's between him and
| me. If it let my coworkers see it so that they can only
| see it within the office, it's between them and me. And
| so on. The only issue would arise if an employee asked to
| see the source of such an internal tool and was denied.
| kevin_thibedeau wrote:
| The FSF FAQ explicitly states that internal use within a
| corporation does not count as distribution. It's one
| legal entity and can't violate copyleft on its own. A
| gray area would be a subsidiary or joint venture sharing
| with a parent.
| contravariant wrote:
| Your reasoning suggests the terms of the copyright
| license _do_ apply when used as an internal tool (you 'd
| be free to keep the code hidden otherwise) in which case
| preventing anyone from publishing any work derived from
| code under a copyleft license seems impossible. At the
| very least the GPL doesn't seem to allow you to create a
| derived work and require people to keep it secret even if
| it's just internal to the office (though I guess they
| could keep it secret willingly, I just see no way to
| legally compel them).
|
| This seems different from something that's purely
| personal use. I don't think it makes much sense to force
| a program to show a notice its GPL licensed if you're the
| only one using it for instance. In fact that seems to run
| counter to the intent of free software.
|
| It's possible that legal systems treat this situation
| differently, but I think it makes far more sense if you
| don't need an additional license to use stuff that's
| already published by the copyright holder until what
| you're doing starts to go beyond just personal use.
| ramshorns wrote:
| Of course; those are freedoms 0 and 1 guaranteed by the
| license. It seems like "use" sometimes means "include in a
| downstream software package and redistribute modified
| versions of".
| fluoridation wrote:
| My point is that just having the GPL doesn't guarantee
| that modifications will be contributed back or published,
| even without violating the license.
| goodpoint wrote:
| Yes, and that's good. Internal use is different from
| redistribution.
|
| The important point is to prevent freeloaders from taking
| credit from your work [and sometime even competing against
| you].
| tempnow987 wrote:
| 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.
| snambi wrote:
| 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 wrote:
| This just makes me more confident in choosing GPL licenses for
| my projects in order to ensure user freedom.
| tempnow987 wrote:
| 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
| bregma wrote:
| You could only infringe the GPL copyright if you change the
| GPL license wording itself. The GPL license is a license
| that allows software using your copyright code to be used
| by others under certain conditions but at no point does it
| violate the law and remove your copyright in your own work,
| so there is no way someone could sue you (and win) for
| using your copyrighted work as you see fit, including
| licensing it under a separate distribution license to some
| third party.
| tempnow987 wrote:
| That's the change here. Historically the GPL distribution
| language was a condition of the copyright license, so
| exactly as you said, no one could sue you because there
| was no separate contract element to end users binding
| them into a contract with anyone.
|
| That is what is so exciting / different about this. When
| you make available software under the GPL, you have now
| entered into a CONTRACT (not copyright anymore) with all
| users that binds you to the terms of the GPL and gives
| them a right to sue for violations of THEIR independent
| rights.
|
| This is the power of this new ruling, they can then sue
| you or anyone for breaking this agreement with them.
| Obviously will take some experience to see how far this
| can be taken. My understanding is the conservancy may
| want to try to leverage this to try to get GPLv3 effects
| into GPLv2 and a few other things the developers of for
| example Linux are not so hot on.
| shkkmo wrote:
| > When you make available software under the GPL, you
| have now entered into a CONTRACT (not copyright anymore)
| with all users that binds you to the terms of the GPL and
| gives them a right to sue for violations of THEIR
| independent rights.
|
| Sure, anyone can sue you for anything. However nothing in
| this removes the copyright holders' ability to issue non-
| GPL licenses. A user of a product that uses a non-GPL
| license for that code would still have no standing for
| that suit.
| tempnow987 wrote:
| Correct.
|
| Historically one could contribute to a GPL project
| (potentially on a significant level for a corp) but
| wouldn't worry too much about using it in your own
| product that was potentially locked down - ie, DRM /
| motor duty cycle control, rev limits etc.
|
| Linus / Linux have a long history of being pretty relaxed
| about your use cases, with the one key provision that you
| share your code.
|
| Now, the group of people who can sue you is much larger.
| And some of them (conservancy in particular) may have
| views that don't align with your GPLv2 interpretation
| (particularly around tivoization / lock down issues for
| hardware devices). So if you are contributing too and
| shipping GPLv2 code - yes, you as the distributor of a
| larger body of code probably have a higher risk now of
| being sued.
| shkkmo wrote:
| You seem to have the concepts of copyright and license
| confused.
|
| > you infringe your own GPL copyright in some proprietary
| project
|
| You can't infringe your own copyright. If you own the
| copyright to the code, you can't violate GPL by using it,
| even if that code is licensed under GPL. This is because a
| copyright holder releasing only their code under one
| license, can also release that code under another,
| proprietary license.
| tempnow987 wrote:
| That's what's so new about this. There is now a contract
| (not copyright) element - which binds you and the
| recipients of your code.
|
| If you contribute to an open source project, then use
| that code in for example a locked down device, a user /
| conservancy who views that as a violation of GPL can sue
| you. That's important because historically developers on
| linux kernel have not agreed with conservancy views on
| things like encryption keys, and so have not pursued
| these types of claims and were somewhat unlikely to fully
| litigate claims against other contributors especially
| beyond just sharing code back.
|
| As the conservancy notes, the universe of potential
| claimants (even with bogus claims) is now much much
| larger.
| shkkmo wrote:
| > If you contribute to an open source project, then use
| that code in for example a locked down device, a user /
| conservancy who views that as a violation of GPL can sue
| you.
|
| If it is only code you wrote and you haven't transfered
| your copyright to the project, then No, this creates no
| standing.
|
| > That's what's so new about this. There is now a
| contract (not copyright) element - which binds you and
| the recipients of your code.
|
| Incorrect, there is a contract that binds you and
| recipients of the code _under a GPL license._
|
| If you receive that code under a different license, that
| contract doesn't exist.
|
| Edit: Let me put it this way. Let's say you create a
| library and make it available under GPL. Any company that
| uses your code under that GPL license, has entered a
| contract with you that allows users of their software to
| sue them for GPL violations. However, you can also
| simultaneously offer a non-GPL, proprietary license for
| that library to paying customers. Those paying customers
| would not be part of any GPL contract, they would instead
| have whatever contract they signed with you when buying
| the proprietary license. The users of that paying
| customer would have no grounds to sue that paying
| customer, because that paying customer never agreed to
| the GPL contract. (OFC if you use other people's code in
| your library under a GPL license, then you don't have the
| legal right to offer a propriety license for that code.)
| tempnow987 wrote:
| You are missing a large value to GPL code, it's often
| developed collaboratively.
|
| Consider carefully your example, you've contributed to
| some GPLv2 body of code. Now you ship that code on your
| device (making available corresponding source code, but
| not decryption keys). You are not the only copyright
| holder, this is a collective effort.
|
| Can you avoid the GPL'ed requirements? No. More
| critically, this allows new requirements to be asserted
| (under the GPL) that GPLv2 developers might not have
| considered something they want to enforce (hardware
| unlock) but users and activists might want to try and
| enforce.
|
| All good for the users. Glad to hear this is welcomed by
| developers and those hiring open source contributors.
| This is still going to be a change from past GPLv2
| experience I think for some / many.
| pessimizer wrote:
| I'm missing something here. Are you saying that people
| should be able to (or were previously able to) violate
| the GPL with software that they contributed to, but
| didn't completely write? What about the rights of the
| other contributors?
|
| edit: if not, maybe you're trying to say that the people
| who control the license to the project (and have the
| contributors' agreements to prove it) can't relicense the
| code however they want (and however is allowed in the
| agreement) for whoever they want? Because I don't think
| that's true.
| tempnow987 wrote:
| In the past if you were a contributor and violated the
| GPL in terms of your product (that used yours and others
| code) it was only other contributors who could sue you
| (ie, you broke your deal with them, and they had the
| copyright that was violated).
|
| There are different views on the GPLv2. Most of the
| contributors / developers on GPLv2 just wanted you to
| share back your code, so most litigation in this space
| followed that approach. Even there, it was at times
| pretty cooperative.
|
| The SFC has a MUCH more aggressive view. They have views
| around DRM / unlocks on hardware and much more that are
| very user rights focused, but pose complications to
| developers. In the past though, they really couldn't
| pursue these claims because despite lots of contributors
| to projects, many didn't support their approach and so
| wouldn't work with them to make copyright claims. To give
| you a sense of some developers views:
|
| "lawyering has become a nasty festering disease, and the
| SFC [Software Freedom Conservancy] and Bradley Kuhn has
| been the Typhoid Mary spreading the disease." - Linus
| Torvalds (key player in the Linux kernel development).
|
| They and the EFF created Affero GPLv3 and GPLv3 to try
| and solve for some of the issues they felt were
| important, but developers didn't really get on board.
|
| The key is SFC can now sue folks making and distributing
| devices with OSS software WITHOUT any permission or input
| from the creators and copyright holders of the software,
| that is what is so huge. And this is particularly
| important because many authors and copyright holders have
| different views on these issues compared to the SFC.
|
| We went though this once with GPLv3 already. SAMBA for
| example moved pretty aggressively to GPLv3. I'm not sure
| apple kept contributing to it or updating it in their
| software once that happened.
| dcow wrote:
| 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 (=
| goodpoint wrote:
| > protect end user freedom over reducing intermediate
| developer & corporation hassle
|
| Actually it also reduces intermediate developer hassle:
| it's better if I don't have to rely on closed source
| firmware, firmware updaters, drivers, SDKs, proprietary
| tools.
|
| It create openness in the whole software stack.
| tempnow987 wrote:
| Agreed.
|
| Will be interesting to see where development /
| contributions by various players go in the future.
| goodpoint wrote:
| > 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.
| user3939382 wrote:
| 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 wrote:
| 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.
| [deleted]
___________________________________________________________________
(page generated 2022-05-16 23:01 UTC)