Court Says Open Source Licenses Can Be Enforced

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Open SourceA federal court in Northern California has denied a request to dismiss a lawsuit involving the alleged infringement of an “open source” software license.

Artifex, the plaintiff in the case, develops and licenses software used to interpret files written in formats such as PDF. It owns Ghostscript, which is the most widely used PDF interpreter not developed by Adobe (which created the PDF format).

Dual Licensing

Artifex offers both commercial licenses to Ghostscript and a conditional open source license called the GNU General Public License (GNU GPL). This is called “dual licensing.”

As The Register noted,

Loads and loads of free-software projects are covered by the GPL, from the Linux kernel to the GCC toolchain. The license is designed to ensure software code stays free, as in freedom can be distributed for free, as in free beer; and can be used by anyone anywhere provided they adhere to the license.

Artifex registered the copyright for Ghostscript version 8.54 in 2008 and registered version 8.71 in 2016.

Hancom, the defendant in the case, is a South Korean software company that develops Hangul,  word processing software used mainly in South Korea but also in the US.

Hancom incorporated Ghostscript into its Hangul software, to deal with PDFs. Hancom failed to obtain a commercial license for the software.

Because Hancom didn’t get a commercial license, it’s considered to have consented to the terms of the GNU GPL because Section 9 of the GLP reads:

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

Hancom’s website also stated that it had licensed Ghostscript under the GPL.

According to the court,

because Defendant integrated Ghostscript into its software without revealing to the end-user that Ghostscript was part of the Hancom software, the GNU GPL required Defendant to distribute its software with the accompanying source code.  Defendant did not do so and thus violated the GNU GPL, terminating Defendant’s license to use Ghostscript.

Breach of Contract

Artifex sued to breach of contract and copyright infringement.

Hancom tried to have the case dismissed, arguing that the open source license wasn’t actually a contract.

The court disagreed, saying,

The GNU GPL… provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNL GPU. These allegations sufficiently plead the existence of a contract.

No Harm, No Foul?

Hancom also argued that Artifex hadn’t suffered any harm as a result of Hancom’s actions.

Again, the court disagreed, saying,

Plaintiff plausibly alleges that Defendant’s use of Ghostscript without obtaining a commercial license or complying with GNU GPL deprived Plaintiff of the licensing fee, or alternatively, the ability to advance and develop Ghostscript through open-source sharing. Indeed, as the Federal Circuit has recognized, there is harm which flows from a party’s failure to comply with open source licensing: “[t]he lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration” because “[t]here are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.”

Takeaway

The case is a positive development for companies that create software using the “dual licensing” model, and a warning to companies that fail to obtain commercial licenses when these are available.

The case is Artifex Software, Inc. v. Hancom, Inc.

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