Comment by floatingatoll | Hacker News Reader

Comment by floatingatoll | Hacker News Reader

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https://heathermeeker.com/2018/04/30/first-gpl-case-in-china...

As the link warns, this is a secondhand translation, and my summary is thirdhand. Do your own reading, especially in the original language, if able.

The general point here is that the Chinese legal system declared that the GPL legalese is OK, but that judges have the power to evaluate it in context of the case and retain the authority to override the legalese when it results in inappropriate outcomes.

In this specific ruling, the judges ruled that bundling ('aggregation') of GPLv3 and unlicensed code did not infect the unlicensed code with the GPLv3, resulting in a loss for the defendant.

If Onyx is bundling GPLv3 code with non-GPLv3 code, based on this single case, they are not required to disclose the source of the non-GPLv3 code that is aggregated with the GPLv3 code. If they have also/instead modified GPLv3 code, then they would probably be required to publish the source for the works derived from GPLv3 code.

The usual arguments here are that modifying a bundle of GPLv3 code to include non-GPLv3 code is itself a 'derivative work' of GPLv3 code, or that the GPLv3 specifies that such bundling shall result in the bundled code being forcibly licensed under GPLv3. The Chinese court apparently did not accept this line of reasoning.

YMMV, IANYL

I think you have a few details wrong.

Firstly (a minor detail) I don’t think GPL requires you to “publish” source code per se. Just make sure that every recipient of a binary copy can also receive the source code.

But more importantly, the license doesn’t “infect” things. In no way can you be forced to license your code according GPL. Failure to comply with the GPL simply means the license isn’t applicable and the situation reverts back to normal copyright rules.

That makes more sense than I was able to make of it, thank you.

>But more importantly, the license doesn’t “infect” things.

[I’m not your lawyer and this is not legal advice.]

It can have that effect. My understanding is that if you include GPL code in your software[1] and distribute it without sharing your source code, you are committing an ongoing contract/copyright violation that can be remedied either by recalling and destroying the offending products, complying with license terms by releasing your source code, or settling with the original copyright owner (effectively, paying a license).

As for a court forcing you to release the code, that is in fact what the GPL contract requires so the court is within its rights to require specific performance instead of monetary damages. Even though common law courts strongly prefer monetary damages, they will turn to specific performance if they think it's appropriate.

All of this is going to turn on some questions about when you can bring copyright infringement vs. contract actions. It's not an area I'm super familiar with, but see my response below about at least one case that suggests you could sustain a contract action for a GPL violation in some circumstances.

[1] In the way that requires you to release your own software under the GPL. Of course, there are ways to use GPL software that don't implicate that. I'm not talking about those.

> they will turn to specific performance if they think it's appropriate

Do you know of any cases with the GPL where a court has in fact done so? I'm not aware of any outcomes where code has been forcefully licensed as a penalty. Absent strange outside circumstances (like a signed contract) I'd instinctively (but without legal training) think that that a court would treat the violator as "acting without a license" rather than "had specifically agreed to the terms of a contract and then broken it".

It was a live issue in the Artifex case. The parties ultimately settled so we don't have a final answer, but the district court was going along with the contract theory. The availability of specific performance remains an open question too. But if you can in fact enforce the GPL as a contract, then it's not a big step to some plaintiff getting specific performance, which is going to turn on case-specific things like the adequacy of monetary damages.

https://www.synopsys.com/blogs/software-security/breach-gpl-... https://www.omm.com/resources/alerts-and-publications/alerts... https://www.natlawreview.com/article/important-open-source-r...

Thanks, this is a great answer! I'll try to look at these links later.

That's interesting. The GPL actually includes language specifically permitting aggregation like this:

> A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, and which are not combined with it such as to form a larger program, in or on a volume of a storage or distribution medium, is called an “aggregate” if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation's users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate.

The lesson here is if you want non-severability provision to work, you need to make the licence restrictions also binding for the original author (full reciprocity). Similar cases will also arise in Europe.

What do you mean?

Restrictions like share alike and termination provision should also apply to the original copyright holder.

Why is that the lesson? Maybe I'm dumb but I don't understand how that would help anything.

There are principles of arm's length and equal treatment among equals for contracts to be enforceable. Copyright licences are treated like contracts of adhesion in many jurisdictions (though not in USA). By-attribution share-alike , non-severability and non-revocation clauses in a share-alike licence attempt to make the parties equal, but it does not arrive quite in there, still leaving the copyright owner privileged a bit.

IANAL, YMMV

I realize I don't know much about licensing because I didn't understand a word of that.

That is currently not the case, and I don't think it should be.

If I write a piece of software and release it under the GPL, I can sell it as proprietary code as well, dual-licensed. I am in no way obligated to provide updates and changes under the GPL too.

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