Empowering users of GPL software
A new style of GPL-enforcement lawsuit was filed on October 19 by Software Freedom Conservancy (SFC) against television maker Vizio. Unlike previous GPL-enforcement suits, which have been pursued on behalf of the developers and copyright holders of GPL-licensed code, this suit has been filed on behalf of owners of the TVs in question. The idea that owners of devices that contain code under the GPL have the right to access that code seems clearly embodied in the license, but it remains to be seen if the courts will decide that those owners have the legal standing to sue for relief.
Novel
There are some other ways this lawsuit stands out from previous efforts. For one thing, it comes with an extensive press kit to help media outlets (and others) understand the suit and its ramifications. The press kit fills in some of the details from the complaint, but also provides a "Q&A" section, biographies of SFC spokespeople, quotes from various industry experts, a glossary, and more. It is an excellent summary of the background for those who are not well-versed in our community and its licenses, but there is quite a bit of interest in that document even for LWN readers and others who are generally knowledgeable about such things.
The press kit makes clear that an additional goal of the lawsuit is to educate users about their rights under the GPL and why those rights should matter to them. The lawsuit could be seen as something of an attention-grabbing effort to try to help ensure that the benefits of licenses like the GPL actually end up reaching the users who are supposed to be the beneficiaries of the source-code disclosure required. Doing so is in keeping with the public-benefit role of charities like SFC, but is typically not part of the strategy embodied in lawsuits, which are clearly targeted at the legal system—and the defendant, of course.
Unlike many high-profile lawsuits, SFC's suit is not asking for monetary damages from Vizio; instead it is asking the court to order Vizio to comply with the terms of the GPL and LGPL that cover code in its TVs. Beyond that, it is asking the court to declare that the terms and conditions of the GPL licenses require source-code disclosure, effectively determining that the GPL operates the way that the free-software community believes that it does—and that Vizio is in breach of the license. The only monetary requests are for reimbursements of the costs and attorney fees needed to pursue the lawsuit.
The 27-page complaint is, as might be guessed, a detailed description of the problems that SFC sees in the actions of Vizio. The next step will presumably be a response to the complaint, which will be public as well. This stands in contrast to the confidential nature of many of the filings in the SFC's most recent GPL-enforcement suit, Christoph Hellwig v. VMware, which was filed in Germany and eventually dismissed on procedural grounds. That lack of transparency was one reason to file in the US, as SFC executive director Karen Sandler said in the press kit:
Given that so many GPL violators are based here in the U.S. (including Vizio) and because of the transparency of the U.S. legal system, it makes sense as a venue for this litigation. In particular, we listened to individuals in the FOSS legal community who complained that the Hellwig vs. VMWare case in Germany—which we partially funded—was not transparent. We worked very hard to compel more transparency in the German legal system, but we were simply unable to do so. We heard those complaints and listened to the FOSS legal community and its suggestion that transparent litigation about the GPL was the right way to go.
Details
As with many (most?) "smart" TV makers today, Vizio uses Linux and a variety of other GPL/LGPL-covered code in its SmartCast platform that runs on its devices. According to the complaint, Vizio TVs that SFC purchased did not come with offers to provide the source code for those components, nor with the source code itself (on a CD, say), either of which is required in order to comply with the licenses.
SFC became aware of the problem and purchased one of the TVs in question in March 2018. It found that the Linux kernel was present on the device, but there was no offer or source code. SFC contacted Vizio in August 2018 about that problem, which started a lengthy process where Vizio tried to provide the source code for the kernel.
Throughout 2019, Vizio provided six separate versions of the source code to
SFC, but none of them would actually compile, according to the complaint.
Each time, SFC provided a detailed report to Vizio "showing what was provided and what it
believes, after its analysis, to be missing
". Toward the end
of 2019, the organization participated in a conference call with Vizio and
its chip supplier to discuss the problems with the source code provided.
In January 2020, Vizio expressed hope that the supplier would come up
with the missing pieces soon, but that was the last communication SFC had with
the company—even after six follow-ups in the following five months.
In mid-2021, SFC purchased three different models of Vizio TVs. In looking at the firmware on the devices, SFC found 13 more GPL-covered components (including BusyBox, Bash, and Awk) and 11 LGPL-covered components (including the GNU C library, FFmpeg, and systemd). Those three models are specifically at issue in the suit, though it is clear that the hope is that any ruling will cover all models that Vizio makes or will make that contain GPL code.
The question of legal standing
would seem pivotal in this case. Suits can only proceed if the plaintiff
can show "sufficient connection to and harm from the law or action
challenged
"; a determination of a lack of standing for SFC (as a
placeholder for all users) could
derail the suit without the court ever looking deeper into the issue. The procedural
issue that caused the dismissal in Germany was, effectively, that Hellwig
did not show enough copyright in the kernel to bring his suit. Here,
instead of a copyright holder suing over the misuse of their copyrighted
code, we have users who are not parties in the license directly asking for
relief from the courts.
The complaint lays out the case for granting standing starting at clause 107 on page 20. A few separate clauses get to the heart of the argument SFC is making:
110. Therefore, a motivating purpose—indeed, the sine qua non—of the GPLv2 and LGPLv2.1 is to provide the Source Code to downstream recipients of computer programs covered by those license agreements.[...] 112. It is consistent with the objectives and express language of the GPLv2 and LGPLv2.1 to permit recipients of executable software covered by those license agreements, such as purchasers of Vizio smart TVs, to seek court assistance to enforce their right to the corresponding Source Code.
[...] 116. Plaintiff is not a contracting party to the GPLv2 or the LGPLv2.1 as that agreement relates to the Vizio smart TVs, in that it is not asserting that it is the licensor of the software used in Vizio smart TV s or any works based on the software or derivative thereof.
117. Plaintiff is a member of a class of persons for whose benefit the GPLv2 and LGPL v2 .1 were created and intended.
[...] 121. As a third-party beneficiary under the GPLv2 and LGPLv2.1, Plaintiff has a right to the Source Code corresponding to the executables of the SmartCast Programs at Issue and Linking Library Programs that reside on the Vizio smart TVs purchased by it.
As can be seen above, the complaint is somewhat repetitive and verbose, which is normal for a filing of this sort. It does make for interesting reading for those who want a deeper look into what SFC alleges and what it thinks a judge should do if they agree.
Often, in the case of a lawsuit against a device maker like Vizio, it is filed as a class action, where multiple consumers harmed by the actions of the manufacturer join together in the suit. Typically, those kinds of suits target a monetary penalty that gets shared among those who join into the suit—after the lawyers take their, usually hefty, fees off the top. But, as the Q&A notes, the penalties requested in this case obviate the need for multiple plaintiffs:
Furthermore, pursuant to "The Principles of Community Oriented GPL Enforcement," the lawsuit does not prioritize financial remedy over compliance. This lawsuit seeks the most important remedy for the public good: release of the Complete, Corresponding Source (CCS) for all GPL'd components on Vizio TVs. Once that is achieved, the benefit is immediately available to not only all who purchased a Vizio TV, but also to the entire FOSS [Free and Open-Source Software] community.
Looking ahead
This is an interesting case for a number of different reasons, though it could well play out over quite a few years before we really know its outcome. One need only look at how long Google v. Oracle—or the seemingly never-ending SCO v. IBM case—took to resolve to realize that this case could stretch out for a decade or more. Assuming the facts are being reported accurately in the complaint—and they seem rather cut and dried—it is difficult to see what argument Vizio could make to short-circuit its GPL obligations, except, of course, for SFC's standing.
Vizio could also presumably cut the lawsuit off at the knees by simply complying with the licenses. Perhaps that is hard to do, however, as it would seem that the chip supplier is unable to produce the complete corresponding source—at least so far. From a business perspective, though, one might guess device makers would be leery of seeing an adverse judgment in this case. If any buyer of a device can successfully win a lawsuit of this nature, it greatly expands the number of potential plaintiffs out there. On the other hand, it also means that the arguments made about copyright assignment being necessary for GPL enforcement will have been weakened—or rendered moot.
But, of course, if users are found not to have standing, there is no shortage of potential targets for a GPL-enforcement suit by copyright holders of Linux and other FOSS components. The right answer, as always, is for companies to simply voluntarily comply with the licenses on the plethora of high-quality code that our communities make available to them. SFC is slowly ratcheting up the pressure to hopefully someday make that happen as a matter of course.
Posted Oct 21, 2021 0:22 UTC (Thu)
by faramir (subscriber, #2327)
[Link] (17 responses)
Posted Oct 21, 2021 1:03 UTC (Thu)
by Paf (subscriber, #91811)
[Link] (8 responses)
Posted Oct 21, 2021 10:53 UTC (Thu)
by kpfleming (subscriber, #23250)
[Link] (7 responses)
Posted Oct 21, 2021 16:49 UTC (Thu)
by dxld (subscriber, #90530)
[Link]
> [...] note that the last line makes the offer valid to anyone who requests the source. This is because v2 § 3(b) requires that offers be “to give any third party” a copy of the Corresponding Source.
Personally I've started to just send speculative GPL source requests to vendor's support contacts before even buying anything ;)
Posted Oct 23, 2021 19:26 UTC (Sat)
by Wol (subscriber, #4433)
[Link] (5 responses)
WHOOPS!!! That is ONLY true if Vizio supplied the software AT THE TIME OF PURCHASE!
Now that Vizio has failed to supply the software WITH the TV, the only way they can come back into compliance is to make it available to EVERYONE.
Cheers,
Posted Oct 24, 2021 7:04 UTC (Sun)
by NYKevin (subscriber, #129325)
[Link] (4 responses)
It seems fairly obvious to me that:
* Vizio is not in compliance with any of the three options under section 3 (at least, based on the publicly-available information that I have seen about this case thusfar).
I don't understand what part of this argument implies that Vizio must supply the software to everyone. Of course, it's a moot point, since anything given to the SFC will almost certainly be made public as soon as the litigation concludes. But if (for example) big tech companies start suing each other under this theory, they might behave differently, so this question really does matter and is not entirely academic.
I suppose you are arguing that they cannot "accompany" the binaries with the source, because the binaries were already distributed to the SFC? Contrary to popular belief, judges hate this kind of "well, actually" semantics hair-splitting argument. It is no longer possible to *literally* accompany the binaries with the source, but providing source after the fact is obviously the next-best thing. A judge would likely either order money damages to make up the difference (i.e. "Here's how much money the SFC lost by not having access to the source code for X months/years, and that monetary loss was caused by Vizio failing to provide source, so now Vizio has to pay the SFC that much in damages"), or just call it "de minimis" and rule that supplying the source after the fact is close enough (i.e. "The SFC didn't lose any money by not having access to the source code for X months/years, so Vizio doesn't have to pay them anything at all").
This may sound unfair, and perhaps it is, but a more interesting question, to my mind, is whether the SFC will even get as far as arguing this point in the first place. Before they can begin to argue over "accompanying" vs. "providing after the fact," the SFC first has to establish that *just* paying money damages would be inadequate to cure the violation all by itself. Money damages are usually favored as the clean and simple way to fix a contractual violation, and courts don't like ordering specific performance unless there's no reasonable alternative. So it's entirely possible that the court will rule as follows:
1. Vizio violated the contract.
Posted Oct 25, 2021 19:30 UTC (Mon)
by Wol (subscriber, #4433)
[Link] (3 responses)
It is YOUR choice whether you comply with 3a or 3b (Vizio does not have the option of 3c).
They did not comply with 3a (supplying the code with the TV), therefore they have to comply with 3b (supplying the code to ANYONE who asks).
Read 3b carefully - it says "ANYONE who ASKS ...", not anyone who bought a TV ...
Cheers,
Posted Oct 25, 2021 19:33 UTC (Mon)
by Wol (subscriber, #4433)
[Link]
Cheers,
Posted Oct 25, 2021 23:28 UTC (Mon)
by NYKevin (subscriber, #129325)
[Link] (1 responses)
I already addressed this in my comment.
Posted Oct 25, 2021 23:38 UTC (Mon)
by NYKevin (subscriber, #129325)
[Link]
Posted Oct 23, 2021 8:33 UTC (Sat)
by shentino (guest, #76459)
[Link] (2 responses)
Posted Oct 23, 2021 9:59 UTC (Sat)
by farnz (subscriber, #17727)
[Link] (1 responses)
Assuming the infringing goods aren't made in the USA, the normal sanction would be to hold up imports until the injunction is complied with.
I don't know where Vizio has their manufacturing facilities - or indeed if they just use contract manufacturers like much of the industry - but they could find themselves unable to import new product to ship, effectively killing the company.
Posted Oct 23, 2021 19:29 UTC (Sat)
by Wol (subscriber, #4433)
[Link]
(And if Vizio has any sense, they WILL drag their supplier in to this - "comply or your American market will evaporate!")
Cheers,
Posted Nov 27, 2021 18:42 UTC (Sat)
by mcortese (guest, #52099)
[Link] (4 responses)
I think the "standing" argument is that there is no contract between Vizio and the end user, which SFC is or represents. The contract that's being voilated was established between Vizio and the copyright holder, so a court might dismiss the case because SFC is not one of the parties making the agreement.
In other words, A and B sign a contract where A gives something to A and B commits to give something to C, then B fails its part of the agreement. Has C any legal standing for sueing B?
Posted Nov 29, 2021 13:44 UTC (Mon)
by geert (subscriber, #98403)
[Link] (3 responses)
A rich benefactor dies. His will states that the local city inherits his big park, on the condition it must be open to the general public.
Posted Nov 29, 2021 16:52 UTC (Mon)
by Wol (subscriber, #4433)
[Link] (2 responses)
Quite what could be done about it, I'm not sure, but in UK law the town would not be the owner. I suspect, if asked, the courts would force the town to hand the park over to a committee who would run and open the park on behalf of the public (NOT the town). The problem with this, of course, is the town would be under no obligation to fund any of this.
This is quite a good analogy it looks like - the courts should force Vizio to hand over the source :-)
Cheers,
Posted Dec 10, 2021 11:51 UTC (Fri)
by nix (subscriber, #2304)
[Link] (1 responses)
Posted Dec 10, 2021 12:26 UTC (Fri)
by Wol (subscriber, #4433)
[Link]
Except that land had been given to the town explicitly for a hospital.
It's now a GP surgery, minor injury, and X-ray unit. I can't remember the history but the X-Ray unit is very interesting, being located in a bunker from the WW2/Cold War era. No danger of X-rays leaking from there ... :-)
Cheers,
Posted Oct 21, 2021 1:25 UTC (Thu)
by developer122 (guest, #152928)
[Link] (6 responses)
Of course, this argument was already thin. Especially when there has been at least one instance of a project assigning rights to GNU, then coming to them to enforce the GPL against a company and being told "no, we don't have enough resources." (by RMS himself, no less) Because all rights were assigned that means nobody but else can pursue it either, shutting out the actual project developers/maintainers from taking action.
Posted Oct 21, 2021 1:28 UTC (Thu)
by developer122 (guest, #152928)
[Link] (3 responses)
Posted Oct 21, 2021 3:30 UTC (Thu)
by Paf (subscriber, #91811)
[Link] (2 responses)
The main project I’ve contributed to over the years has a certificate-of-origin-esque contributor agreement, basically guaranteeing you have the right to contribute the code and it is not known to be encumbered etc, and at this point I have contributions under two employers *and* under my own copyright (made while between jobs). And it’s a GPLv2 project and since I’m happy with the license, I’m happy about the copyright patchwork - from many people and organizations chipping in over the years - that means it can’t realistically be changed.
If there had been an FSF style copyright assignment… well…
Posted Oct 21, 2021 5:45 UTC (Thu)
by gfernandes (subscriber, #119910)
[Link] (1 responses)
Both of you should read the lawyers (Bradley Kuhn) reasons for why copyright assignments still make sense. Also in the comments section of the same article.
Posted Oct 21, 2021 6:13 UTC (Thu)
by pabs (subscriber, #43278)
[Link]
Posted Oct 28, 2021 14:46 UTC (Thu)
by eduperez (guest, #11232)
[Link] (1 responses)
* FSF: "You are violating my rights as a developer"
Posted Nov 27, 2021 19:48 UTC (Sat)
by Wol (subscriber, #4433)
[Link]
* SFC: "You are violating the rights of the developers for whom we are the lawyers"
Cheers,
Posted Oct 21, 2021 10:39 UTC (Thu)
by karim (subscriber, #114)
[Link] (20 responses)
There are many small western companies and startups that work with such design houses and none would be able to provide source even if they were sued to oblivion; the only real remedy being a removal of the offending product from the market of litigation.
A GPL that can't be enforced is a BSD in disguise.
Posted Oct 21, 2021 14:19 UTC (Thu)
by geert (subscriber, #98403)
[Link] (19 responses)
So their only option is to forward the favor to (i.e. sue) their supplier. Which is not dissimilar to what would have happened if their supplier had distributed commercial software to them without a license.
Posted Oct 21, 2021 15:19 UTC (Thu)
by karim (subscriber, #114)
[Link] (18 responses)
To be clear. Many of these companies working with such design houses only learn about this far too late. They originally start off with a simple idea to create a device that does foo. They quickly realize that while it looks good on a napkin that they don't have the technical knowledge to make it and/or money to do it all in house. They discover there are these design houses that will more or less cook whatever dish you want and deliver everything so that you label it with your brand.
The trouble comes later. When they want to customize what they got because users or customers are asking for something or the other. Then they discover that working with the design house is suboptimal. So they try to get the sources to work with someone else. But they never get it. In fact the design house likely got it under strict licenses from their SoC vendor -- surprise, they used a unfamiliar SoC (you kind'a asked for that since you were shopping for cheap hardware manufacturing), and they're not like this big vendor who actually plays by OSS rules. So the design house will claim it's not at the liberty of giving you the code.
So, in short, the fundamental problem is that many "device" manufacturers trying to get cheap devices to western markets neither have the interest nor the ability to do in-house development. Furthermore, few have the wherewithal to do legal due diligence of what their suppliers are giving them. They're far too eager and focused on short term making money to even care sometimes.
In this specific case it looks like Vizio actually really tried an honest approach of trying to get their SoC vendor to give them sources. And they weren't able. In other words, while this lawsuit might look like a nice show for some constituents, it's unlikely to result in a meaningful resolution. It looks like the sources aren't Vizio's to give.
Posted Oct 21, 2021 15:40 UTC (Thu)
by Nemo_bis (guest, #88187)
[Link] (2 responses)
If they have customers in the USA, and plan to have more, of course they care. Courts can simply seize all their future sales in the USA even without making any extraterritorial claim.
It's another matter if the supplier went bankrupt (which can easily happen, especially as it might be just a shell corporation for some subcontractor) or just shuts down business.
Posted Oct 24, 2021 3:48 UTC (Sun)
by developer122 (guest, #152928)
[Link] (1 responses)
That said, I think the end result is the same in both scenarios: the company either folds or is heavily damaged financially. The end result is that after a few of these events, companies might be a little more concerned about this issue and either
Posted Oct 25, 2021 7:35 UTC (Mon)
by geert (subscriber, #98403)
[Link]
Posted Oct 21, 2021 15:44 UTC (Thu)
by marcH (subscriber, #57642)
[Link] (2 responses)
Seeing that Vizio have apparently no idea what software their products are running (and that's just the GPL parts!) is also a red flag (pun intended) not to buy Vizio products. By now even people not familiar with computers know about malware and watching Vizio admitting in a court that they have no idea what they sell is going to be fun to watch, it could even make it to mainstream media - again for security reasons. The Software bill of materials idea is hopefully easier for the public to understand than the GPL and unlike the GPL is does not attempt to revolutionize the entire industry, it is something every business can and should do right now.
Posted Oct 21, 2021 16:19 UTC (Thu)
by jra (subscriber, #55261)
[Link]
Posted Oct 25, 2021 19:14 UTC (Mon)
by clump (subscriber, #27801)
[Link]
Posted Oct 21, 2021 17:29 UTC (Thu)
by pizza (subscriber, #46)
[Link]
That doesn't excuse Vizio not even _attempting_ to comply with the licenses of the stuff they are shipping.
(They don't have complete kernel sources? Fine. What's their excuse for not providing the sources they they do have? What's their excuse for not even providing a copy of the GPL in their documentation? It's one thing to fail at perfection; it's another thing entirely when they don't even bother to _try_)
Posted Oct 21, 2021 17:39 UTC (Thu)
by marcH (subscriber, #57642)
[Link] (2 responses)
Ask Meng Wanzhou (Huawei) or Frédéric Pierucci (Alsthom) how they liked American jails
Today's economy is a "global village" and very few actors are far away US jurisdiction. For electronic products it's probably none.
Now I don't think the USA care enough about the GPL for anything that extreme to happen but the SBoM is definitely appearing on their radar.
Posted Oct 21, 2021 18:53 UTC (Thu)
by eru (subscriber, #2753)
[Link] (1 responses)
Posted Oct 21, 2021 21:20 UTC (Thu)
by marcH (subscriber, #57642)
[Link]
I bet she loved the experience and that it had no impact on Huawei /s
Posted Oct 21, 2021 23:57 UTC (Thu)
by Hattifnattar (subscriber, #93737)
[Link] (1 responses)
Suppose Visio wanted some word processing in their smart TVs, and a supplier included a copy of MS Word (perhaps modified). What Microsoft would do? What courts would say?
I don't thing "sorry, this is the fault of a supplier, not ours" would fly. I think Visio would be told "tough luck".
(This analogy is to argue your points only; obviously there is a big difference with the actual situation, because it's not the copyright holder but a third party who brings the lawsuit. But this affects only standing question, not the question of responsibility)
Posted Oct 22, 2021 18:39 UTC (Fri)
by JanC_ (guest, #34940)
[Link]
Posted Oct 22, 2021 9:15 UTC (Fri)
by farnz (subscriber, #17727)
[Link] (5 responses)
We have existing mechanisms to deal with this.
The importer (not the manufacturer) is responsible legally for ensuring that products meet all requirements of the country they're being imported to. If they don't, then the importer is responsible for fixing it or taking the hit of destroying the product. For example, if I import automated coffee machines from Shenzhen that have pirated copies of Microsoft Windows Embedded on them, I am responsible for fixing that somehow; I can destroy the machines, I can come to an agreement with Microsoft that cures my infringement, or I can replace the software. What I'm not allowed to do is say "this is how they come from the manufacturer, not my problem".
This also applies to other standards; as importer, I am responsible for things like my product emitting toxic gases from its plastic components, and for things like fire safety standards. it is not enough to say "this is how I bought it", I have to ensure that what I bought meets the appropriate standards for the country in which I'm selling it.
Now, we have mechanisms for dealing with this; if I take legal advice before signing a contract with a design house, I will be supplied with a standard contract that (among other things) lists the sale jurisdiction requirements and ensures that the design house won't get paid if they don't meet these requirements. Design houses are used to this, and (e.g.) will use more expensive materials than they might otherwise, or better PCB design practices, in order to get paid.
If SFLC win (and I hope they do), those contracts will add a new term around GPL compliance, requiring the design house to supply a bundle of materials to meet the compliance burden. The design houses will charge a bit more for this, and will supply it, and GPL compliance will join UL marking, CE marking, FCC Part 15 compliance, ROHS compliance and others as one more thing that you simply get right.
This doesn't mean that all of the small companies with a good idea will use the updated contracts, of course. Just as today, you get small firms being surprised the hard way when they have to take their product off the market at short notice and end up with unsold stock because they failed to meet EMC or electrical safety, so you'll see small firms surprised the hard way because they failed to sort their copyright obligations.
Posted Oct 22, 2021 9:35 UTC (Fri)
by karim (subscriber, #114)
[Link]
But beyond how anyone in the present echo chamber (myself included), the reality is that there is a lot of this happening and the players are often too small for enforcement against them to set precedent.
Again, just to clarify, I am not endorsing, merely explaining.
Posted Oct 22, 2021 18:47 UTC (Fri)
by JanC_ (guest, #34940)
[Link] (2 responses)
Posted Oct 23, 2021 0:28 UTC (Sat)
by rgmoore (✭ supporter ✭, #75)
[Link] (1 responses)
In practice, of course, it's not cost effective for an individual consumer to sue their local retailer, which is why in the USA, at least, this kind of thing tends to be converted into a class action lawsuit. Since it all goes back to the importer, they're the ones who usually get sued. The exception is when the seller is bigger than the importer, e.g. Amazon.
Posted Nov 2, 2021 15:53 UTC (Tue)
by JanC_ (guest, #34940)
[Link]
Posted Oct 23, 2021 4:15 UTC (Sat)
by pabs (subscriber, #43278)
[Link]
Posted Oct 21, 2021 15:58 UTC (Thu)
by jthill (subscriber, #56558)
[Link] (28 responses)
Posted Oct 22, 2021 3:54 UTC (Fri)
by giraffedata (guest, #1954)
[Link] (26 responses)
The language they're using is that of the third party beneficiary doctrine in contract law. This relatively recent invention says that if John promises via contract to Jane to give Jane's son $100, Jane's son has a legal claim against John for the $100.
So given that a copyright license doesn't require anyone to do anything and that the language of contract law is being used, maybe the underlying principle is that there's actually some contract going on -- copyright license in exchange for source code release.
Posted Oct 22, 2021 6:15 UTC (Fri)
by jthill (subscriber, #56558)
[Link] (6 responses)
Posted Oct 23, 2021 1:54 UTC (Sat)
by giraffedata (guest, #1954)
[Link] (5 responses)
I'm just saying the purpose of the licensor is irrelevant to whether the licensee has any legal obligation to anyone.
You're right that GPLv2 mentions acceptance of the license, which isn't a thing in copyright law, and that makes it sound like a contract, but then again, it stops short of actually saying that. It doesn't use the words "promise," "agree", or "covenant" as a contract would.
There has always been speculation that copying something under GPL involves a contract, but others have insisted it does not, and my impression is that the pro-contract people have capitulated. I can't recall any case where a court found contractual obligations.
I don't know why Stallman chose to use a copyright license instead of an explicit contract; every commercial software license I've seen is part of an End User License Agreement (contract).
Posted Oct 23, 2021 15:43 UTC (Sat)
by qyliss (subscriber, #131684)
[Link] (1 responses)
Here's one in the US, and another in France.
Posted Oct 24, 2021 1:33 UTC (Sun)
by giraffedata (guest, #1954)
[Link]
Thanks. I missed those and will try to remember them.
To put the California case in perspective, this 2017 case was, according to https://www.synopsys.com/blogs/software-security/breach-gpl-license-breach-contract/ , the first time a US court had found a contract cause of action in a GPL case, after 16 years of scrutiny of the GPL (the Linux era). That gives some idea of how nonobvious it is.
It was a case in a US federal (presumably because it also included federal copyright issues) district (lowest) court. The case was ultimately settled, but not before the court ruled that assuming the facts are as the copyright holder alleged, there was a breach of contract. This court was interpreting California contract law, but its finding would be binding only in federal court (in California).
I had a hard time following the French case, because French law and jurisprudence are apparently too foreign to me. It seems that French copyright law itself creates a contract cause of action, to the point that copyright infringement claims were dismissed.
Posted Oct 23, 2021 22:40 UTC (Sat)
by anselm (subscriber, #2796)
[Link] (2 responses)
The GPL allows end users to do things (under certain conditions) that copyright law normally forbids, like giving copies of the code to other people. These are things that the copyright holder can declare unilaterally are OK as far as he or she is concerned. Users don't need to accept this merely to use the software, but, as the GPL famously avers, there is no other way for them to be granted the extra privileges that the GPL affords them.
EULAs usually try to prevent users from doing things that they would otherwise be allowed to do (on top of the things that copyright law by itself already prevents them from doing), like publishing the results of their own benchmark tests. This is not something that a copyright holder can stipulate unilaterally; they need the user to agree voluntarily to be bound to the EULA rules – IOW, enter a contract – before even getting to use the software.
Posted Oct 24, 2021 1:57 UTC (Sun)
by giraffedata (guest, #1954)
[Link] (1 responses)
So maybe a conditional copyright license is good enough, but wouldn't a EULA (well, some kind of LA) be better?
As we've seen from the various attempts in the GPL world to find a contract under the heading "General Public License" or an implied contract, there are things you can do more powerfully and less ambiguously with a contract than with a conditional license. I think GPL is widely understood to be a clever and revolutionary use of copyright law (hence the name "copyleft"), whereas contracts were really well worn. Why not publish a public contract offer saying, "I offer anyone permission to distribute this code for the consideration of promising to include source code for it and any modifications... You may accept this contract by distributing the code."
Posted Oct 24, 2021 7:15 UTC (Sun)
by NYKevin (subscriber, #129325)
[Link]
> 5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.
There's room for argument that this is a little too implicit and "automatic" to really qualify as a proper contract, but the flip-side is that an explicit "clickwrap" contract would make dual-licensing more complicated, would require UI support, would make batch installation tedious, etc. Arguably, the GPL's wording strikes a reasonable balance here.
Posted Oct 23, 2021 19:01 UTC (Sat)
by Wol (subscriber, #4433)
[Link] (18 responses)
And in law what is the difference between a licence and a contract? None?
Both are simply civil consensual agreements. A contract is where one person makes an offer and another makes an acceptance. The offer/acceptance is often bidirectional. A licence is exactly the same ...
Cheers,
Posted Oct 23, 2021 19:29 UTC (Sat)
by mpr22 (subscriber, #60784)
[Link] (6 responses)
The "consideration" part means "both parties receive something of value".
If you approach a proprietary software vendor directly and buy a licence from them on negotiated terms, then there is consideration (you get a licence, which you presumably regard as being a thing of value or you wouldn't be paying for it; they get money, which in all reasonable situations will be recognized under the laws of money-using societies as a thing of value), offer and acceptance (the negotiation), legal purpose (presumed in the absence of clear grounds to believe otherwise), capable parties (if you and the vendor both understand the terms you negotiated), and mutual assent (implied by you both fulfilling the negotiated terms).
Hence, there is fairly clearly a contract.
The questions with free software licences that can make it Not A Contract (even if it is still enforceable because of the premise "without a licence you can't lawfully copy a copyrighted work") include things like "what value does the copyright holder receive in exchange for the licence?", "was the recipient of the software aware of the terms of the licence?", "is the recipient of the software capable of understanding the licence?", and "does the recipient's understanding of the licence align with the copyright holder's?"
Posted Oct 25, 2021 19:48 UTC (Mon)
by Wol (subscriber, #4433)
[Link] (1 responses)
I believe there is a case - with Linux no less - where a court ruled that "pay forward" was a valuable consideration to the copyright holder ...
(That is, the end user benefits were classed as payment to the copyright holder, because he was getting what he wanted ...)
Cheers,
Posted Oct 26, 2021 21:45 UTC (Tue)
by giraffedata (guest, #1954)
[Link]
This is not surprising, because there is a classic case in US contract law from 1891 where an uncle promised to pay his nephew if the nephew abstained from drinking, sex, etc. until he was 21. The nephew did abstain and the uncle refused to pay, citing lack of consideration. The court said there was a contract.
But it's not even that. The court said consideration means the plaintiff gave something up, regardless of whether the defendant got that thing.
Posted Oct 26, 2021 7:51 UTC (Tue)
by kleptog (subscriber, #1183)
[Link] (3 responses)
I think it's worth noting that this is a English/American law thing. Here in NL at least, a (copyright) license is just another kind of contract, which then falls under the category of "obligations". Contracts can be written, but they can also be created simply by the act of people acting like it exists (e.g. buying something in the shop creates an implied contract between you and the shop, even though nothing is written down).
I'm pretty sure the discussion of whether the GPL is a contract or not is meaningful in much of the world.
Posted Oct 26, 2021 21:53 UTC (Tue)
by giraffedata (guest, #1954)
[Link] (2 responses)
Contracts are created that way in Anglo-American law as well, though there are some specific situations (mostly, real estate transactions) where writing is the only acceptable evidence of a contract and in every case where the contract is memorialized in unambiguous writing, no other evidence of what was agreed to is allowed.
There may be a terminology or translation problem with the difference between US and NL copyright licenses, because if a license is a contract per se, then what do you call the thing that the copyright holder agrees to give in that contract? In US law, the word for the thing given is "license". And the word works for a gift as well (and gifts don't involve contracts).
Posted Oct 27, 2021 12:05 UTC (Wed)
by kleptog (subscriber, #1183)
[Link] (1 responses)
Ah, the joys of translating legalese. A licence grant rights ("rechten") or informally, permissions. So in English you say "I have a licence to copy" you would say (translated literally) "I have the right/permission to copy" (a wording that probably gives English copyright lawyers fits). A "driving licence" becomes "rijbewijs", literally, proof you can drive.
It does make a phrase like "licence to kill" a bit tricky since the obvious translation "right to kill" isn't quite the same. You have to go to a (relatively) recent word "vergunning", invented in 1881 as the thing that places had to have to be able to sell alcohol. However, only the government can issue "vergunningen".
Interesting point about gifts, here gifts are also a contract! In particular, it's a "contract without consideration" or alternatively a "single-party contract" ("eenzijdige overeenkomst"). It only binds the person doing it. I can't figure from the wikipedia page whether single-party contracts are possible under Anglo-American common law.
Ain't language fun. In civil law system "contracts" are merely a subcategory of "obligations" and so cover all manner of things. In common law systems (AFAICT) there is no attempt to categorise the different kinds of obligations. Which I guess is why the discussion "is it a licence or is it a contract" even exists.
Posted Oct 27, 2021 20:01 UTC (Wed)
by NYKevin (subscriber, #129325)
[Link]
This is called a "gratuitous contract." In general, they are not enforceable, but you may still get equitable rights under the promissory estoppel doctrine, depending on the specifics, including jurisdiction (England and America, for example, have different rules here). As a result, it is difficult to categorize gratuitous contracts as either enforceable or unenforceable. When the contract is breached and you sue each other, a judge will look it over and try to be "fair" to both parties, based on a long list of considerations and precedents which lawyers spend years studying.
You can easily fix this problem by having the other party give you a dollar in exchange, regardless of whether that's fair market value or not (contract law doesn't care whether you made a good deal, just whether you made a deal at all). Then it's definitely a real contract and not a gratuitous contract, and you don't have to bother with this estoppel nonsense.
Posted Oct 23, 2021 23:58 UTC (Sat)
by giraffedata (guest, #1954)
[Link] (10 responses)
A contract is a bilateral thing where someone agrees to take on a legal obligation in exchange for someone else doing something.
A license is a one-way instrument in which someone gives someone else permission to do something. There is no agreement and no obligation.
Giving someone a conditional license, like GPL, has many of the same effects as entering into a contract with the person, but there are more differences than there are similarities.
If you want an analogy, consider a real property deed -- another one-way instrument that can be conditional. E.g. "I grant you this property as long as it is never used for anything but a farm." It's similar to entering into a contract of sale in which you give an unconditional deed and the buyer promises never to use the property for anything but a farm, but the result is very, very different in the details.
Posted Oct 24, 2021 7:32 UTC (Sun)
by NYKevin (subscriber, #129325)
[Link] (9 responses)
I believe US courts, at least, have previously held that the licensor receives the benefit of having their code spread more widely, which might be good for their career or something. While this benefit is quite nebulous, and pretty obviously Not Worth It when you consider the amount of work that goes into the average FOSS product relative to the amount of career benefit it is likely to provide, courts don't actually care about the magnitude of consideration, or whether the agreement is "fair." They just care that both sides receive something with some sort of value (even very low value). The standard legal formulation of this is "a peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn."
(As that was from an English case, post-1789, it is not binding precedent in the US, but would still be considered as persuasive authority, and US contract law is fairly close to English contract law in general.)
> "I grant you this property as long as it is never used for anything but a farm."
Side-note: I have never understood why people think it's a good idea to put these sorts of ridiculous constraints on real estate, especially when they appear in wills and such. All you're doing is making things more complicated for your heirs and successors. You can't possibly know what bizarre circumstances are going to arise after you die or move. These shenanigans are the reason the Rule Against Perpetuities had to be invented (although the legendary complexity of said rule is, as far as I can tell, entirely the fault of English judges who insisted on making it as weird and convoluted as humanly possible instead of just saying "don't do that").
Posted Oct 24, 2021 17:50 UTC (Sun)
by giraffedata (guest, #1954)
[Link] (8 responses)
This is a good argument that the copyright holder receives consideration for his license to copy, but why? Is the copyright holder ever going to be the defendant in a GPL case, trying to argue that no contract was formed?
I also want to clarify that any argument about whether or not a contract exists is separate from the fact that the copyright license involved is not itself a contract. Just like when you give someone a check in exchange for a car, you may have a contract of sale, but that check is not the contract.
Posted Oct 25, 2021 1:11 UTC (Mon)
by NYKevin (subscriber, #129325)
[Link] (7 responses)
No, but a copyright-holding *plaintiff* might well try to raise such an argument (which should fail, because FOSS cannot work if the GPL and similar licenses are revocable at will). If the license was granted pursuant to a gratuitous (one-sided) contract, and a court rules that the contract is unenforceable, then this would logically invalidate the license.
Posted Oct 26, 2021 4:04 UTC (Tue)
by giraffedata (guest, #1954)
[Link] (6 responses)
It's the copyright holder who has lots to gain by there being a contract.
Posted Oct 26, 2021 16:56 UTC (Tue)
by Wol (subscriber, #4433)
[Link] (5 responses)
Cheers,
Posted Oct 26, 2021 22:00 UTC (Tue)
by giraffedata (guest, #1954)
[Link] (4 responses)
I'm sure there are lawyers making something out of GPL's passing reference to accepting the terms of the license (a concept that I don't think exists in pure copyright law), but it's a stretch to say any use of the word "accept" means a contract is being described. There are lots of things we accept in life without forming a contract.
Posted Oct 27, 2021 19:48 UTC (Wed)
by NYKevin (subscriber, #129325)
[Link] (3 responses)
Posted Oct 27, 2021 20:29 UTC (Wed)
by Wol (subscriber, #4433)
[Link] (2 responses)
Common Law has the concept of "Time Immemorial" or, in other words, "We've always done it this way". Which I always thought was "anything pre-dating Magna Carta". To which we then added Criminal Law. And, possibly later on, Civil Law. And all three ran ?happily? together. (Before Magna Carta, the King was the Law (thanks to William), so there was no concept of Civil or Criminal law, just the local/regional/national "might makes right". Which still survived, to a considerable extent, into the Stuart era.)
And a single court would happily enforce all three types of law, sitting as a Civil court, a Criminal court, or a Court in Equity. And, in recent years, as a European Court ... Courts in Equity were abolished about 1900, in part at least thanks to Dicken's novel of Jarndyce v Jarndyce (based on a real case ...)
But Common Law and Courts in Equity live on in the Judge seeking to be fair wherever his hands on not tied down by legislation or precedent. (And even when those hands are tied, Judges usually look for wiggle room and very occasionally they create wiggle room with fiat law.)
Thanks to Napoleon, European Civil Law jurisdictions don't have that Common Law / Equity background, and if it's not been legislated, it's not law. Which brings a different set of problems ... :-)
Cheers,
Posted Oct 28, 2021 22:44 UTC (Thu)
by nix (subscriber, #2304)
[Link] (1 responses)
Nope! Though the dates are quite close, so I can see why you thought so. The Statute of Westminster 1275 mostly consists of things of no current relevance ("The Remedy where a Guardian maketh a Feoffment of his Ward's Land") or things that seem entirely sensible and frankly it's astonishing they were ever *not* illegal ("None of the King's Officers shall commit Extortion")... but chapter 39 (repealed in England in 1863, long after its relevance ended) implements a sort of statute of limitations, limiting the temporal reach of certain writs to (depending on the type of writ) the beginning of the reign of Richard I or Henry I: 6 July 1189, or the first voyage of Henry II to Gascony (I'm not sure when that is: presumably it predates his marriage to Eleanor of Aquitaine in 1152, since I believe that was in Gascony), or Henry II's accession to the throne (19 December 1154). Quite why they felt the need to distinguish between the last two cases I have not the least idea. Maybe the "first voyage" was many years earlier?
This is not referred to as "time immemorial" in the Statute itself, but over time this came to be understood to be the limit of "time immemorial" in English law, in that if you've owned a property or benefit for that long, you need not prove how you own it. All very convenient for the large number of bandits in ermine who stole everything that wasn't nailed down and a great many things that were in the decades after 1066, no doubt.
Posted Oct 28, 2021 23:17 UTC (Thu)
by Wol (subscriber, #4433)
[Link]
Which is why Domesday is sometimes referred to as Doomsday, which it was for the Saxons at least ... :-)
Cheers,
Posted Oct 25, 2021 19:44 UTC (Mon)
by Wol (subscriber, #4433)
[Link]
Except, under English law, I'm pretty sure they don't. The executor acts "in loco deceased", and while they are supposed to follow the deceased's wishes, there are plenty of cases where they've screwed up, been tardy, or simply not bothered. And the beneficiaries have absolutely NO legal recourse, even to the extent that the executor has lost the entire estate ...
About the only recourse they have, if as is common a solicitor has appointed themselves executor to a client's will, is to report the solicitor to the Law Society for misconduct. Which will get them nothing but might get the solicitor struck off.
Or if there's clear fraud they might succeed with a lawsuit for abuse of trust, but that's a BIG gamble ...
Cheers,
Empowering users of GPL software
They are claiming standing for themselves as purchasers of GPLed software. That's probably why they are requesting performance under the license rather than monetary damages. It would be hard for a random purchaser to prove monetary damages, but much easier to show lack of performance of the license. If as you suggest, Vizio can't comply as they don't have the source; I don't know what SFC will request or the courts would require. Given SFC's history, I would guess one possibility would be an injunction requiring Vizio to verify they have the appropriate source for all GPLed binaries before releasing any new products. SFC might also request that Vizio cooperate with the SFC in bringing lawsuits against their suppliers. If Vizio were to violate such an injunction, I could see the courts supporting even more drastic punishments. But IANAL...
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Wol
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* Section 4 says that their copying is unauthorized and their license rights are terminated, because they failed to comply with section 3. But SFC does not have standing to sue over that, and isn't claiming it as a cause of action. So we can (probably?) ignore that.
* Section 5 states that Vizio has "accepted" the GPL by "modifying or distributing the program (or any work based on the Program)."
* SFC is trying to argue that this "acceptance" is a binding contract, and that Vizio must therefore comply with at least one of the three options under section 3.
2. SFC had rights under the contract, which were harmed by Vizio's breach.
3. But SFC is not in the commercial software business. They don't make software, they don't sell software, and they don't employ software developers. So they suffered no actual commercial damages as a result of the breach.
4. SFC "wins" and gets nominal damages of $1. Vizio is ordered to comply with the contract in the future, and they do so by pulling the specific product(s) that SFC purchased.
5. The end (at least until a company that *does* make software buys a Vizio product and sues over it, anyway).
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Wol
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Wol
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The city installs a big fence, which is always closed. Can the general public sue the city?
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Wol
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Wol
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* SFC: "You are violating my rights as a buyer"
Empowering users of GPL software
Wol
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A) start using a lot more BSD (though how many SoCs does that run on?)
or B) seek some "safe" chips for which source is easier to acquire and the price of which will be high.
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https://en.wikipedia.org/wiki/Software_bill_of_materials
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https://www.bbc.com/news/world-europe-47765974
Empowering users of GPL software
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In other words, there is danger (i.e. cost) in using dodgy suppliers that appear to be cheap.
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Seems to me the users have the same standing as for instance beneficiaries named in a will: they at least clearly should have a legally-enforceable interest in its benefits. The agreement Vizio made when they accepted the license was for the users' benefit, they're the ones being harmed by Vizio's failure to honor its terms.
Standing
Except that wills and copyright licenses are so fundamentally different. The entire purpose of a will is to benefit the beneficiary, whereas the purpose of a copyright license is to permit the licensee to copy the work. Even the licensee doesn't have a case against the copier for not having provided source code; his case is for having copied the code without permission.
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The GPL offers a copyright license, but I'd say that's pretty far from all there is in it. It's explicit about the purpose of the whole package in every version. Care to take a stab at an argument that purpose is anything other than to benefit the public it names, you, me and everyone? I'm having a hard time imagining one that'll hold water. I don't recall the GPLv3 language, but I do recall the words "offer" and "acceptance" in v2. If the copyright holders value delivering that benefit, then delivering that benefit is the consideration they demand in exchange for the license. Does that not satisfy the definition of a contract?
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There has always been speculation that copying something under GPL involves a contract, but others have insisted it does not, and my impression is that the pro-contract people have capitulated. I can't recall any case where a court found contractual obligations.
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Here's one in the US, and another in France.
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I don't know why Stallman chose to use a copyright license instead of an explicit contract; every commercial software license I've seen is part of an End User License Agreement (contract).
Standing - why Stallman didn't do an explicit contract
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Wol
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I believe there is a case - with Linux no less - where a court ruled that "pay forward" was a valuable consideration to the copyright holder ...
(That is, the end user benefits were classed as payment to the copyright holder, because he was getting what he wanted ...)
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The difference between a contract and a license is fundamental. It's as big as the difference between a contract and a check.
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I believe US courts, at least, have previously held that the licensor receives the benefit of having their code spread more widely, which might be good for their career or something. ...
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Is the copyright holder ever going to be the defendant in a GPL case, trying to argue that no contract was formed?
I still don't see the scenario. Lack of consideration is a defense when someone alleges a contract exists. If a copyright-holding plaintiff sues a distributor defendant for copyright infringement, the defendant will not allege that a contract exists; he will allege that the plaintiff gave him a license to copy. That's a defense to a copyright infringement claim. The defendant has no reason to argue that GPL code distribution involves a contract. His theory is not that the copyright holder promised to give him a license, but that she did give him one.
No, but a copyright-holding *plaintiff* might well try to raise such an argument
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