A question mark over whether the GNU GPL – the widely used free-software license – is enforceable as a contract may have been resolved by a US federal judge.
In a California district court, Judge Jacqueline Scott Corley refused [PDF] to accept what has been an uncomfortable legal precedent for the past decade. She ruled that the GNU General Public License – the GNU GPL – is an enforceable legal contract even though it is not actually signed.
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.
The case before Judge Corley concerns a South Korean company called Hancom that sells a suite of software programs similar to Microsoft Office. It downloaded and incorporated PDF toolkit Ghostscript into its software. Ghostscript is developed by a California-based outfit called Artifex.
Now, Ghostscript is dual licensed: you either use it for free under the GNU Affero General Public License, an approved variant of the GPL, or you pay Artifex for a commercial license. Under the commercial license, you can use the code for your own purposes, and keep all the source to yourself. Under the GNU AGPL, you have to, among other things, distribute for free any changes made to Ghostscript.
Hancom decided not pay Artifex for a commercial license. Instead, it opted for the AGPL route, but then failed to obey the license and make freely available the changes it made to Ghostscript while integrating it into its product.
Seeing as Hancom was effectively going down the closed-source commercial license lane but without paying a dime, Artifex knocked on the Koreans' door. The Ghostscript developer demanded backdated license fees on the hundreds of millions of dollars Hancom had made from the sale of its – infringing – software. Hancom refused. Artifex sued.
In its defense, Hancom claims various things, including that it is not based in the US so there cannot be an infringement in the US, but critically it makes two arguments that get to the heart of the enforceability of the GNU GPL:
- That since it did not sign anything when it downloaded Artifex's software there is no contract to be enforced.
- That the contract claim is preempted by federal copyright law.
That second claim may seem a little odd and that's because it is based on a notorious case – Jacobsen v Katzer – that was heard in the same legal district, the Northern District of California.
The dark, dangerous world of model railways
In that case, which was over model railway software of all things, Katzer sought patent royalties from Jacobsen even though Katzer had used open-source code developed by Jacobsen. So Jacobsen sued.
The case became very complex very quickly and led to numerous appeals, as well as a range of claims and counterclaims from patent and copyright infringement to cybersquatting. But, critically, the appeals court decided that the violation of the Creative Commons Artistic License governing the model railway software does not preclude the possibility of a copyright claim.
The outcome of that case, however, did not clarify whether open source license violations could be considered contract violations. The Free Software Foundation, which maintains and develops the GNU GPL, has taken the position that it is not a contract.
Except when it is.
At the end of April, Judge Corley denied Hancom's motion to dismiss the case based on the claim that because the South Korean company didn't actually sign something, no "mutual assent" had been demonstrated.
"Not so," she decided. "The GNU GPL provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license ... these allegations sufficiently plead the existence of a contract." She references a MedioStream v Microsoft case where Microsoft successfully sued for breach of a shrink-wrap license.
Whether that reasoning will shape the final outcome of the case remains to be seen.
As to the claim that the GNU GPL was preempted by federal copyright law, the judge took issue with the Jacobsen case acting as a precedent and highlighted an argument that, she notes, was "apparently not made in Jacobsen."
And that argument surrounds there being an "extra element" beyond claims that also exist in copyright law. That extra element, the judge notes, is the existence of the GNU GPL itself – specifically its requirement that any derivative work from the software also be made open source.
Since there is no obligation under copyright law to make the end result open source, then the fact that the GNU GPL exists – and people agree to it when they download software – means that it is itself the "extra element" required to push the issue past a simple copyright issue and into the realm of contract law.
In that sense the GNU General Public License is self-propagating... like fractals, man.
So while the Free Software Foundation hippies may not like the idea of GNU GPL as a contract, they can't deny some satisfaction in the recursive nature of this legal argument – put forward by a federal judge, no less.
This is after all the organization that decided that GNU stood for "GNU's Not Unix." ®