LWN: Comments on "Artifex launches a GPL-infringement suit against Palm"

Since a EULA invokes contract law ...

Baylink — Sun, 13 Dec 2009 02:20:41 +0000

Well, to clarify the language, the issue is whether case law in the jurisdiction in question gives any effect to a contract a buyer could not read before performing the action which purportedly gives it effect.

EULAs are contracts of adhesion; anywhere they have effect, the courts have sold out to the corporations.

Artifex launches a GPL-infringement suit against Palm

jamesh — Tue, 08 Dec 2009 23:57:04 +0000

The problem is that Palm have a PDF reader application based on the MuPDF library, and have not released the source code to that application.

That application is clearly a derivative work of the PDF library it is built on, so they would need to release the source code to that too in order to comply with the GPL (or take out a commercial license from Artifex).

It is not a GPL-infringement suit

jspaleta — Tue, 08 Dec 2009 17:34:07 +0000

Is there any previous lawsuit which has put the practise of dynamic linking GPL licensed code under legal review? Even ones that settled out of court. I think the only notable (at least the ones I noticed) publicly announced GPL violations have been about releasing the source code and patchsets.

-jef

Artifex launches a GPL-infringement suit against Palm

forthy — Tue, 08 Dec 2009 09:44:17 +0000

I have no idea what they are complaining about. When I go to opensource.palm.com I can download the mupdf source tarball and the patches applied to it. I haven't bought a Palm Pre, so I don't know if the written offer to obtain source is GPL conforming, but the source itself is available.

Artifex launches a GPL-infringement suit against Palm

jamesh — Tue, 08 Dec 2009 04:14:17 +0000

I guess it is too bad that Palm didn't use a GPLv3 version of MuPDF.

If that was the case, they would have the option to release the source code to their PDF reader as a way to regain their right to distribute the code (provided they did so within 30 days).

With the GPLv2 version they used, they've lost all rights to distribute the code by infringing the license, so Artifex could potentially take out an injunction against the sale of Palm's products.

In this respect, the GPLv3 is a bit more business friendly than the GPLv2.

Artifex interprets the GPL and...

drag — Mon, 07 Dec 2009 22:10:05 +0000

If you could talk to them about this it would be terrific as it would make
some part of my job much easier. I am in absolutely no position to argue
with them.

My personal opinion is what they said makes some sense and I am not a big
advocate of trying to use the software contrary to the wishes of the
original author, at least not in a professional environment.

Maybe I just misunderstood them.

It is not a GPL-infringement suit

BrucePerens — Mon, 07 Dec 2009 22:06:16 +0000

This one might turn on the dynamic-linking issue, and thus might be more about the GPL terms than not. The question is whether a dynamic-linked application is a derivative work or not.

I bet Palm settles, though. Artifex doesn't generally want a ton of money, and previously parties challenged have settled, most before a lawsuit was brought.

Since a EULA invokes contract law ...

drag — Mon, 07 Dec 2009 22:03:09 +0000

Oh and it's not whether or not the EULA is legal, the dissagreement, I
think, stems from how effective they are in the retail-type environment.

I am really stretching here, so don't take what I am saying with much
weight.

Since a EULA invokes contract law ...

drag — Mon, 07 Dec 2009 22:00:55 +0000

Like I said it depends on were you located.

Different states have different court precedent, but the majority of states
are pro-EULA. Just depends on what happened when people challenged EULA in
their particular courts.

Artifex interprets the GPL and...

johill — Mon, 07 Dec 2009 21:24:03 +0000

Sorry, as somebody else pointed out and I just found in the sources too -- v2 of course.

It does seem that they didn't publish the code to the pdf viewer application though.

Since a EULA invokes contract law ...

AnswerGuy — Mon, 07 Dec 2009 21:16:03 +0000

Whoa, Nelly! IANAL either but last I heard it was not entirely clear that a (shrink wrapped or click-through) EULA is technically a valid contract. There are licensing agreements which are definitely entered into as contracts.

If you enter into a purchasing/licensing agreement directly with a software vendor (or authorized agent thereof) then it's pretty clearly a matter of contract law.

However if you purchase a product in a retail environment (possibly including downloads from public internet sources) then there's a reasonably good argument that the UCC (uniform commercial code) or UCITA (for those jurisdictions that have adopted it) are the legal framework governing the transaction).

In other words there have been arguments that EULAs (presented in shrink-wrapped or click-through forms) are not enforceable contracts because the overwhelming expectations of the majority of the parties involved believe themselves to be engaged in a retail transaction which, implicitly, as a matter of long-standing historical tradition, has been governed by its own rules.

So far as I know that argument has not been unequivocally refuted.

Artifex interprets the GPL and...

johill — Mon, 07 Dec 2009 21:14:51 +0000

So ... is this what Palm did? Or did they create their pdf reader application around it and fail to license that application as GPLv3?

GPLv3? Nope.

armijn — Mon, 07 Dec 2009 20:58:27 +0000

The version that is available for download on the Palm open source website is clearly a version that was released under GPLv2.

Artifex interprets the GPL and...

jeff@uclinux.org — Mon, 07 Dec 2009 20:31:36 +0000

They are incorrect. The GPL is not open to interpretation on this issue (aggregation).

If they want to argue shipping an embedded device with some part of it's firmware
in the FLASH being GPL makes the whole of the firmware derivative, they will find
it a large hill to climb... there have been many cases of GPL enforcement to point to.
Many of us who write code, both GPL and not, for embedded devices will happily give
expert testimony that this does not constitute derivation.

Artifex is not working in the interest of freedom here, it's a business model thing.

It is not a GPL-infringement suit

rahvin — Mon, 07 Dec 2009 19:04:12 +0000

If the license is ruled invalid then the infringer has no right to the software.

That's the kicker with the GPL, if you rule the license doesn't apply is or invalid the code reverts to standard copyright law meaning you have to have the individual owners permission to copy (which they won't have) and it's straight up copyright infringement. The GPL is your only right to distribute the software and it's not a severable license, if any portion of the license is ruled invalid the whole license is gone (at least under US law) and you are liable for infringement for any use.

Anyone (like tSCOg) that attacks the GPL as being invalid or not applying simply reverts themselves to standard copyright and lose all rights to distribution which is just about the worst outcome possible because the GPL gave rights to distribute, standard copyright doesn't.

It is not a GPL-infringement suit

drag — Mon, 07 Dec 2009 19:04:01 +0000

This is why companies tend to use a combination of EULA's and Copyright licenses to restrict their software. Just because somebody is using your software does not mean that you get to do whatever you want to them, but if the agree to a contract then you can have lots more control.

Since the EULA invokes contract law and not copyright law then that gives them a lot more flexibility in the type of restrictions and requirements that they can place on you for using their software.

For example using Microsoft Office or Windows requires you to submit to a software audit if they suspect you of violating their EULA; at your expense. (I _think_)

Depending on were you are at in the world EULAs have different effects. Some states in the USA there are some restrictions on them based on the fact that you only can agree to most AFTER you purchased and openned the software and that gives you some leverage in fighting EULAs to a limited extent... but in most states they are on solid legal ground. I expect that different countries are all over the map in terms of legality and enforceability.

IANAL

Artifex launches a GPL-infringement suit against Palm

drag — Mon, 07 Dec 2009 18:55:41 +0000

Well actually their first recommendation was to pay for the commercial license, duh. When I said the following I meant that is what they said would _possibly_ work as a workaround. Keep in mind that this was a while ago, so if you want to know the facts as facts then you'll have to ask them to qualify their statements themselves.

> If you want to run a configuration like that they recommend that you distribute either your application or the GPL'd portion of your firmware as a optional item that a customer can put together themselves, if I remember correctly.

Artifex launches a GPL-infringement suit against Palm

drag — Mon, 07 Dec 2009 18:50:21 +0000

I've actually talked to them about this, unofficially, since I was wondering why I could not use Ghostscript stuff with a project I was working on.

They consider that if your shipping a complete product that includes their software as derivative work. So, for example, if I ship a print server that uses a proprietary GUI interface and it requires CUPS + Ghostscript to operate I would be violating the GPL license since the GPL'd software is required for my application to work. They consider that shipping a working product is not a 'mere aggregation' and thus does not qualify under the GPL's exception.

If you want to run a configuration like that they recommend that you distribute either your application or the GPL'd portion of your firmware as a optional item that a customer can put together themselves, if I remember correctly.

Since that is their interpretation we honored that for their product. Trying to fight them on their intrepation of copyright law and trying to use their software against their wishes would of been a stupid thing to do.

It is not a GPL-infringement suit

martinfick — Mon, 07 Dec 2009 18:45:54 +0000

Not quite. If something is deemed unenforceable by copyright in the license, then the license can be "challenged in court". Just because someone "acccepts" your license does not mean they are bound to everything in the license. Try making a license that is similar to the GPL, but with the additional stipulation that author has the right to: "<add ridiculuous stipulation here>" and I think you will find that there will be many jurisdictions that will allow you to challenge the license itself.

It is not a GPL-infringement suit

clugstj — Mon, 07 Dec 2009 18:28:24 +0000

I don't agree. It doesn't matter what Artifex's "business" is. They have released muPDF with a GPL 3 license. They have given Palm the option of using it under those terms - whether or not there are other terms available is not relevant. As long as Palm complies w/ GPL 3, they are OK.

Artifex launches a GPL-infringement suit against Palm

armijn — Mon, 07 Dec 2009 17:59:27 +0000

Artifex license terms are interesting:

http://www.artifex.com/indexlicense.htm

<quote>
Some examples of distribution requiring a commercial license include:

...

3. Distributing Ghostscript or MuPDF embedded within hardware.
</quote>

But it is not clarified what 'embedded' is.

It is not a GPL-infringement suit

JoeBuck — Mon, 07 Dec 2009 17:55:42 +0000

I think "GPL-infringement" might be the right term if the software is offered to the public only under the GPL. The fact that there's also a commercial license, and that many others have paid up (Artifex has sold lots of commercial licenses) in many ways makes the case simpler, and makes it a lot easier for a court to figure out just how much money has been stolen from Artifex (assuming that the article is correct and the Palm Pre contains Artifex's software without permission).

You do have a point that we should be saying "copyright infringment" consistently for this kind of thing. The GPL itself can't be infringed. As its own text says, "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." So there are only three choices: accept and follow the license terms; don't modify or distribute the software; illegally distribute a copyrighted work without permission.

It is not a GPL-infringement suit

robert_s — Mon, 07 Dec 2009 16:54:44 +0000

Well by that guise, no GPL infringement suit is a GPL infringement suit.

When the terms of the GPL are broken, the GPL is no longer applicable. And so with GPL-only sofware, and also with this case, use of the code in a non-compliant manner is pure copyright infringement.

It is not a GPL-infringement suit

JoeBuck — Mon, 07 Dec 2009 16:02:40 +0000

Artifex is in the business of selling commercial licenses to their code. They also make it available under the GPL. If a commercial company does not obtain a commercial license and uses it in violation of the terms, they are a straight copyright infringer. It would be the same if the terms were different (that is, if Artifex offered a choice of buying a license and some other limited use, like "for internal purposes only" or some such) and someone violated those terms.