Italian Courts Find Open Source Software Terms Enforceable | Hacker News Reader

Italian Courts Find Open Source Software Terms Enforceable

ifthisbetreason.com

632 pointsem-bee160 comments

Note that the court ordered the defendants to comply by removing the GPL code from their product, not to comply by publishing their source code. [0]

[0] https://www.dynamic.ooo/press/groundbreaking-acknowledgment-...

Edit: Link changed to press release w/ copy of court's order.

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Don't mind me, just being a dummy :)

Thanks. A statement of the court's order was included in the "press release" link, not the link I originally posted. Link updated.

> The Judge, considering the articles 156 I.d.a. and 700 c.p.c.,

> Orders the defendants (Marco Poglie, Francesco Pesce and Nerds Farm Srl) to cease any use made available to the public, as well as any publications, of the software named E-addons for Elementor, if not after having eliminated every recurrence (exception made for a maximum amount of 500 lines) of the code included in the 1.9.5.2 version of Dynamic Content for Elementor, sub doc.2 produced by the Applicant, within seven days of the communication of this provision.

https://www.dynamic.ooo/press/groundbreaking-acknowledgment-...

I don't understand the exception. Like less than 500 line chunks of GPL can stay? Or only chunks that are 500 or less must be removed in the time allowed?

From the italian version I understand max 500 lines of GPL code can stay... not sure about the reason, it can be quite a lot of code

Only for the record (and IANAL), the second reference (Art.700 Codice Procedura Civile) is only related to the possibility - pending immediate financial loss - to get an accelerated/quick judgement.

The decision lies on the first reference (Art. 156 Legge sul diritto d'Autore - Law on Author's rights), which is Legge 22 aprile 1941 n. 633:

http://www.interlex.it/testi/l41_633.htm

interestingly, the objects protected were originally literature, music, arts, architecture, theatre and photos/movies (and was later extended to include computer programs, television, etc.).

what he said is true, and therefore what you said is less than true.

the GPL requires source corresponding to distributed binaries be released. They distributed GPL binaries and they have not been required to release the source.

They are allowed to make future binaries which are not GPLed, but the users of the GPLed binaries have not had their right to see the source satisfied.

> ...the users of the GPLed binaries have not had their right to see the source satisfied.

That's the intent of the GPL (GPL v3 Preamble) but it's not an outcome that a license can guarantee. A copyright license can only be enforced using copyright law, and the remedies for copyright infringement are limited to monetary damages (actual or statutory). Sometimes the threat of a copyright infringement suit may compel an infringer to release their source code rather than be ordered to pay damages, but sometimes not.

That sounds like a very American thing to say. You're talking about Italian law here?

I'm not a lawyer, but how do software licenses differ from contracts and their stipulations? I'm under the impression that stipulations in legal contracts can be enforced by courts.

I'm not a lawyer either, but I believe you are referring to specific performance [1], which is rarely required (at least in common law systems).

[1]: https://en.wikipedia.org/wiki/Specific_performance

I'm not a lawyer, but I happen to know the answer to this under common law. Which is what applies to most of the USA (Louisiana being the exception), but doesn't apply to Italy. I have no idea about Italian law.

A common law contract requires an offer, acceptance, and consideration. That is, one side must offer the contract. The other must accept it. And each must have some potential gain from it (consideration). Both sides are then bound by the agreement. The agreement can be quite complicated, for example it may bind the parties to resolving disputes with binding arbitration.

A license is permission to do something under some conditions. If you break the license, you are without permission. The licensor can then pursue claims against you just as they could if no license ever existed. For example if you break a copyright license, the licensor can sue you for copyright infringement. But without an explicit agreement from you, they can't sue for anything else.

That's just how proprietary licenses prefer to work. Licenses can do anything contracts can do. Copyleft licenses can grant rights to your users, and if the court believes the rights were granted, it can enforce them.

Not according to lawyers that I've had long conversations about this with. This is just how the law works.

If you want to find a discussion of this topic by a lawyer, a good chunk of https://rosenlaw.com/wp-content/uploads/Taxonomy-of-Licenses... is on exactly this topic. The author of which specializes in open source licensing, and was the general counsel for the Open Software Institute.

You mean bare licenses? The author mentions many times there are other possibilities.

The article that btilly linked to is very good, but I think it over-emphasizes the possibility of interpreting open source licenses as contracts. You have to read pretty far and pay close attention to understand that most open source licenses will fail as contracts and that the GPL explicitly intends that result (pp. 65-66).

Some consequences: (1) the sole recourse for breach of license conditions will be to sue for copyright infringement, (2) only the copyright owner will have standing to sue, (i.e., an intermediate licensee or a user, who might have standing as a third-party beneficiary under a contract theory, will not), and (3) remedies will be limited to monetary damages.

I can't elaborate more than that, but I was under the impression that in some places software licenses can be enforced with contract law, and in other places with copyright law.

Of course they are enforceable? They have been all along, how did the courts only find about it just now? Did they not get the memo like 20 years ago?

Courts regularly hold contracts unenforceable for various reasons. And the question of whether the license is a “contract” or something else also depends on jurisdiction. So no the legal enforceability of the GPL isn’t a priori obvious.

I meant to say, it is physically able to be enforced, therefore it is "enforceable", whether the law chooses to actually enforce it is another story.

I guess the headline should be "Italian Courts decide to enforce" rather than "Italian Courts find out [about this new thing they could choose to enforce called open source]"

(IANAL, etc.) My understanding is that in legal contexts, the term “unenforceable” doesn’t necessarily refer to things that can’t be physically enforced in reality (like “the undersigned agrees to think about a white elephant once per day”) but to things that, if enforced, would violate a pre-existing law or part of the jurisdiction’s constitution (or equivalent “meta-law”).

So if a country’s court decided that the owner of a piece of IP could license it to other people, but that they could not dictate the terms under which it would be redistributed (because that’s how “free speech” is interpreted in that country) then they would rule the GPL unenforceable in their country.

This seems unlikely in most countries, but until it actually gets tested in a given country’s courts, it cannot be 100% ruled out. Most companies think the risk of the GPL standing up is high enough that they don’t want to be the ones to test it, so they comply.

GPL only emulates abolition of copyright. If a country properly abolishes copyright, GPL has nothing more to do.

> GPL only emulates abolition of copyright. If a country properly abolishes copyright, GPL has nothing more to do.

I don’t understand your thinking. Currently you can use GPLed code in your derivative works, if you release your changes under the same license. If copyright were abolished you would be able to use any code, but have no requirement to release yours.

Maybe you mean to say that the MIT license emulates abolition of copyright? That’s still not really true, but it’s definitely closer to true.

No, being a permissive license, MIT license's purpose is to ensure proprietary software can abuse users through copyright.

You only know if something is legally solid when it is tested in court. The GPL has had very little testing, because violations are mostly secret, in China, or not worth suing over.

China should be able to do it just fine: after all copyleft is software communism.

Seems like that would incentivize companies to distribute (A)GPL software for MVPs, or longer than that, until they're forced to stop distributing the GPL software after losing lawsuits. There's no risk of losing their IP or products, they just need to change their dependencies if they get caught.

The flip side of that is, you could make an open source product under a license like MIT, then later quietly (A)GPL it and hope a company updates to the newer version without checking the license, because how many people check the license for every single commit they fetch?

I don't know what the solution is but I'm guessing courts would consider any evidence of intent when making judgments.

This sounds intentionally deceptive and doubt it would hold much weight.

How is it different from a company intentionally using GPL code until they get accused of copyright infringement? Both of them are deceptive, but both seem potentially quite hard to prove as such.

It’s different, because it’s not the same thing. I’m not defending either side here, just saying.. let’s keep the rhetoric out of the debate.

> It’s different, because it’s not the same thing. I’m not defending either side here, just saying.. let’s keep the rhetoric out of the debate.

I'm not sure what you're calling "rhetoric", and I'm not defending either side either. The point of an analogy isn't to give an identical situation, it's to draw a parallel. So far as I can see, it's the flip side of the same issue. I'm not seeing anyone make a compelling case (or really, any case) to the contrary.

Rhetoric is the art of persuasion. It's not a flaw in communication which one should try and avoid; rather, it's a very useful set of skills to develop.

https://owl.purdue.edu/owl/general_writing/academic_writing/...

> The flip side of that is, you could make an open source product under a license like MIT, then later quietly (A)GPL it and hope a company updates to the newer version without checking the license, because how many people check the license for every single commit they fetch?

Part of being a software engineer and developing software professionally is doing your due diligence and making sure that you understand and adhere to the licenses of the software you use and distribute.

The question is what happens when someone is already doing that, but the rug gets pulled out from underneath them unexpectedly (even intentionally). Humans are fallible; mistakes happen even when everyone tried their best to do their due diligence, especially around pitfalls. Claiming that a good software engineer would never fall in this trap is like claiming that a good software engineer would never write a bug.

great, now we need to add a license checker CI step...

Probably a good idea, yeah.

Several projects I'm on already have one:

https://creadur.apache.org/rat/

Granted, this focused on code within the project, not dependencies.

It's nothing new, and yes, checking licenses is a usual task to have on your CI setup.

Good doctors and drivers make mistakes, too, and they still face liability for those mistakes.

I think that if your company is large enough, you should have employees, or pay someone to, mirror your dependencies and automate license checks. There are projects that do the latter already[1][2]. You can loop your lawyers in if licenses change to ensure you don't violate them. If (A)GPL code still ships in proprietary products, that's a process problem that the company needs to solve.

[1] https://github.com/dhatim/python-license-check

[2] https://github.com/davglass/license-checker

The question isn't whether they should face liability or whether the company has problems to solve. The question is what specifically should the penalty be? If you happen to ship any GPL'd code at any point with your product, must it necessarily always follow that you should be forced to release the source to everything else you happened to ship along with it? That's what people here want, and I'm pointing out it has a flip side to it that doesn't seem to be considered.

There is no such situation possible. You can never be forced to release your code under a different license. That is merely one way to cure your infringement.

> If you happen to ship any GPL'd code at any point with your product, must it necessarily always follow that you should be forced to release the source to everything else you happened to ship along with it?

The only thing that gives you any right to ship the code is the license, and you must always comply with the terms of the license, so.. yes?

But here's the thing. GPL doesn't infect things that merely ship "along with it". For your entire software to be covered by GPL it must be a derivative work.

I guarantee you there are professionals doing "npm update" without checking if one of the hundreds of updated packages had a license change in an update.

That's OK, as long as they understand the issues and make an Informed Business Decision(TM) to accept the risk.

They can still use the older code under the license that it came with (MIT).

That's not the question here. The question here is whether they should be compelled to release any code that they may have happened to distribute along with the GPL'd library that was previously under MIT, which would be what people here are asking for.

What you do is release the new code under GPL with major security fixes and sue if they backport.

A cunning plan! Until they just revert to the MIT licensed version.

There is no open source license nor nations laws which I'm aware of where one may lose your own ip by illicitly comingling it with another's.

You may in some cases choose to do so if it is both possible to share your code under the same license and desirable to do so but you can never be forced to do so. Viral licensing is a fiction. You have always been able to simply rip out the offending code.

The reason not to borrow until you are caught is that you could likely have found permissively licensed code to do the job in the first place and ripping the old code out after the fact is more work than doing it right the first time. Furthermore in some jurisdictions you could face court costs or damages. More so yet if your infringement was willful.

Yes because the license was terminated when the violating party violated the license and then also ignored the notice asking them to come into compliance. So the right judgement is to cause GPL code to be removed from the product.

This is one of the things that GPLv3 fixes - there's a "self-healing" clause added.

From section 8 of GPLv3 ("Termination"):

> However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.

The new court ruling is already about the GPLv3 - the self-healing clause still allows a copyright holder to terminate the license of a violator if they choose to exercise part (a) of your quote after a notification of violation which meets the requirements to avoid part (b). I assume that the copyright holder chose this path because their notice requesting compliance was ignored.

What would you expect to happen otherwise? AFAIK this is exactly the same as happens in other court cases where the GPL has been tried.

It would have been weird if they had been unenforceable. As that would mean there is no license to use it at all. And copyright law generally doesn’t work so that if you don’t have a license you are free to do whatever. It’s the opposite. No license, no use whatsoever.

I agree. There's a lot of buzz about how "it's never been proven in court" and all that, but open source software licensing is so cut and dried at this point that it just ends up sounding silly. If having a license.md file in your source code isn't enforceable, then how do multi-billion dollar apps get away with hiding their terms of use behind several clicks and thousands of lines of incomprehensible legal jargon? It would certainly be fun to watch Big Tech hire their gold-medal mental gymnasts to fight it in court, if nothing else.

There are probably thousands of terms of service agreements that are not legally binding in the EU.

https://europa.eu/youreurope/citizens/consumers/unfair-treat...

For example, in 2012 the Court of Justice of the European Union declared that reselling digital software is legal no matter what any EULA attached to the software might say.

https://www.engadget.com/2012-07-03-eu-court-rules-its-legal...

That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid.

Only the parts of the agreement that violate the local laws can be ignored.

Wouldn't that only (reliably) be the case if they contain a severability clause stating that, if any clause is found to be invalid, the rest of the license agreement shall remain valid?

After all, you're typically agreeing to a package, not individually to each term.

Indeed in German law a partially void contract becomes completely void unless it is protected by a severability clause (which means in practice all contracts have them and they usually state that the void part is to be replaced by something with the same or similar economic consequences).

Standard form contracts (take it or leave it rules that are distributed to everyone) are exempt from this though (here the void part falls back to default rules).

Indeed, the normal threshold for whether a contract was/is an AGB (stnadard form contract; allgemeine geschaeftsbedingungen = general rules of business ~ TOS) is whether it was practically negotiable.

No, that effectively enables scams. To prevent scams courts disallow using inability to enforce unlawful clause as a reason to terminate the contract. You typically buy goods, not contracts.

> That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid.

Different people have different ideas of what is reasonable and what is bullshit. Different jurisdictions as well, which is why some clauses in EULAs written by American lawyers are invalid in the EU.

> Only the parts of the agreement that violate the local laws can be ignored.

That is the whole point: to know for sure which ones you can ignore, you need to test them in court.

USA is a special case, because they have a whole moral rule "fake it till you make it" to the point that it works in courts sometimes, and then everybody is the infinite future are screwed because of the precedent law until the supreme court fixes it.

Another, rather surprising example, is that while almost every proprietary EULA has clauses prohibiting it, reverse engineering, including decompilation, is legal regardless of EULA terms in the EU for several purposes, including interoperability and, apparently, fixing bugs.

If I buy the latest superman film on DVD and play it, technically I'm making a copy. I don't have to agree to a license to do this, as it wouldn't be a breach of copyright law to make a transitory copy myself for the purposes of using it. I can't copy it to give to someone else though, that would be against copyright law.

Likewise if I take some GPL software, I can do whatever I want with it to run it, including copying it into memory. I can't give a copy to anyone else (including derivative works such as a binary) without agreeing to the GPL.

> Likewise if I take some GPL software, I can do whatever I want with it to run it

That's true, but unlike the DVD case it's so only because the GPL license explicitly grants you this right. If it didn't, you wouldn't be able to run it at all.

Based on what?

Based on copyright laws. Here in Poland you can even download a copyrighted movie or a song as long as you don't distribute it; you can't however use any software without a license that lets you do it. The GPL licenses explicitly do ("This License explicitly affirms your unlimited permission to run the unmodified Program.").

GPL is actually kind of a special case when it comes to licenses since it mostly cares about redistribution in order to implement its copyleft mechanism, but generally licenses are tools used to give users permission to use the software under specified conditions. Without a license (written or verbal), there's no permission to do anything whatsoever.

You may be confusing it with using a self-modified copy of code under GPL. Since GPL only cares about sharing the modified source with actual users, you won't have to share your modifications with anyone as long as you remain the only user of that modified work.

>there's no permission to do anything whatsoever

What happens if you do?

You're violating the copyright. In practice, usually nothing until the copyright holder decides to sue you for damages or it gets found during some inspection (but the latter is mostly applicable to companies).

Unsurprisingly I'm not familiar with the ins and outs of Polish copyright law, but in other countries the act of copying something into memory to use it (say copying a frame of video into a frame buffer on a DVD) is not a breach of copyright.

Neither it is in Poland (which you would already know if you read what I wrote more carefully).

It could turn out that copyright is only enforceable if it involves payment or authorship.

So if you don't sue to get paid or to get attribution you don't have a case. This way GPL would be unenforceable.

That would hamper all kinds of commercial activities though, as it would effectively make free trials impossible.

It also sounds like it would be a pretty radical change to how copyright laws work, but I’m no expert here.

If the author is effectively payed trough the (expected) purchase later on its probably fine. Or if the author is an employee and gets a salary

> It could turn out that copyright is only enforceable if it involves payment or authorship.

That would make any gift of copyrighted material invalid.

In some countries such copyright assignments are in fact invalid.

Germany had to amend the law back in the day to make Open Source legal.

Before that it wasn't possible to forgoe payment and even now it's not possible in many cases.

do you have a reference to that law change?

as far as i know only the moral rights can not be given up, but i am unaware that there was an issue with giving away work for free.

I found an article on the german Wikipedia

https://de.m.wikipedia.org/wiki/Linux-Klausel

The referenced article is §32 UrhG

thank you. so it wasn't that it was not possible to give away stuff for free but rather that there was a proposal to change the law which would have made it difficult, if not impossible, and as a result the added clause ensured that it would remain possible, at least as long as it is given to the general public.

Contracts typically require consideration. It is important part of contract law.

There are lot of nuances what constitutes consideration, it varies by jurisdiction and also there is lot of common law ( i.e. based on judicial precedents ) that can be complicated and only experts could really could even a given opinion on that and only way to be really know is after that issue comes up in a case for first time in that jurisdiction.

IANAL, but as far as I know consideration is usually a feature of common law not civil law.

Correct. As per my direct reply to the person you're responding to, the kind of concept that's analogous to a contract with consideration is called an onerous contract and the kind that lacks it is a gratuitous contract. (Quebec terminology; it's a standard continental European style civil law system with its ultimate main origin in the Custom of Paris which governed most French colonies until 1763.)

That's not true in most of continental Europe, nor in Quebec (Canada), since their legal system has a different origin than what you're describing.

Using Quebec's terminology by way of example, a contract where an advantage is given in exchange for rendering the obligation (so roughly a contract with consideration) is called an onerous contract, and most typical contracts for services fall into this category. The kind where one obligates oneself without receiving an advantage in return is called a gratuitous contract, and they classify gifts in this category.

But that's not something this decision was about, this was just about missing attribution. I can't imagine that anyone seriously thought that the attribution clause of the GPL wouldn't be enforceable.

There are some other aspects of the license which I would've found much more interesting to be tested in court, especially the FSF's concept of treating dynamically linked executables as derived works and the question who can sue if no source code is provided.

In which case you would not have any license to use or distribute the software.

You can still sue to get paid for the GPL. Some projects (e.g. Qt) make money off of licensing GPL software. Damages could be counted either in terms of lost license fees or the cost it would have taken the infringer to write code to achieve the same function as the infringed code.

This multi licensing is rare compared to all the GPL-only (or comparable open source license) projects.

I's basically a big fuck you to anyone who does not commercializes his software but wants to contribute to the software ecosystem and only expects users to also contribute back to it.

Maybe we need a GPL4 with a building nuke. "You agree to pay 1 Trillion dollars if you do not publish your changes".

> I's basically a big fuck you to anyone who does not commercializes his software but wants to contribute to the software ecosystem and only expects users to also contribute back to it.

The problem here is that "user contributions" are basically impossible to value. Who knows what they might have contributed, and what value others may be able to derive from those contributions. I can't think of a single good way to translate that into dollars. You could charge engineer hours, but who knows how many they would have contributed.

> Maybe we need a GPL4 with a building nuke. "You agree to pay 1 Trillion dollars if you do not publish your changes".

I hope this is in jest, because I fear something like that would chase off open source developers.

I do think it could use a penalties clause. I would suggest something in the net revenue or profit category. It makes the penalty scale, including scaling down to 0 for other open source projects. I don't want to encourage open source projects ignoring licenses, but I do think suing them for money seems unfair when the currency of open source is really contributions.

> You could charge engineer hours, but who knows how many they would have contributed.

I would guess courts have ways of determining this, perhaps via subject matter experts. It's not like GPL software is the only kind of software for which it might be impossible to obtain a proprietary license - there are probably many cases of proprietary software copying from other proprietary software, where one party isn't willing or able to provide a license to another (for instance, a company might be competing in the same space as another that copied their code, so they're unwilling to provide a license). But more likely a settlement would be reached in a case of clearcut copyright infringement.

There was a lot of FUD being spread about supposed non enforceable quality of license.

> It would have been weird if they had been unenforceable.

Well, this is a joke decision since no one will verify whether they actually remove the code.

If someone somehow knew they were using GPL code before the suit, they can easily do the same check after the suit

GPL code can be obfuscated in final products, the code itself would need to be audited for the inclusion of GPL code.

That's not really how it works.

Obfuscation is trivial.

there's a healthy overlap between the people who think that open source licenses are unenforcable, and the people who think masks don't work.

Its almost all based on "I wish", and not "these fact"

I haven’t run a full study, but I have found the opposite amongst people I know: a large overlap between the people who moan about their freedoms being taken away by vaccine mandates and those who moan about the ideological purity of Free Software.

If you see things only in black and white and everything is a crusade, then you don’t care much about facts. I would guess that this is the result of the same mechanisms that prime a conspiracy theorist to see conspiracies everywhere.

RMS is definitely a hypermasker and covid-worrier.

Stallman is an a well known outlier, it's a definitely visible correlation that blue people hate free software.

Excellent, I find both the ruling and the fine reasonable. It wasn't disproportionately heavy, but will make people think twice before violating the GPL.

At 100$/day (or 300 after the first 15 days), I wonder how large the app has to be before violating the GPL won’t bother them anymore? I can see a medium-sized business just treating this as a rent/cost-of-business instead of a fine.

As always, if a fine is only a fixed amount it becomes just a regular transaction for the rich. Ideally the amount would scale with your size/wealth.

That violates the principle of equality before the law. What if instead, the fine started at $100 but grew at 5% per day? Then even the biggest companies wouldn't be able to afford to just keep paying it.

Well, if you fine certain percent of income, so everyone will be treated equally by law. x% of income where x is same for tiny company or mega corp. So principle of equality is not violated.

That's incorrect. If you fined some super rich with 90% of their income they could still live a comfortable life . If you fined normal mortals or poor with 90% of their income they would lose their apartment and could not buy enough food anymore.

True, but as an illustration of why "equal" is not objective the above works. To talk about real equality we first need to define what we mean. And certainly, a percentage will also not deliver equal effect.

> That violates the principle of equality before the law

Quite the opposite. It would restore equality in the punishment, as it should hurt the same to the offender no matter how wealthy they are. As it is now, we're favoring the rich overwhelmingly.

Which brings the wonderful quote by Anatole France that is worth keeping in mind and spreading far and wide:

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.

Indeed, equality before the law really is not a straightforward thing.

If anything, even a flat percentage does not create equality. If I was fined 30% of my annual income for something, it'd suck, but I'd just take it out of savings. But many lower earners who'd pay much less would struggle with the same. But fines as a percentage would at least be an improvement.

> That violates the principle of equality before the law.

No, it doesn’t; a fine of N years income or N% of wealth is at least as much equal treatment as a fine of $N. And current law recognizes it, because even though fines are typically stated with a fixed upper limit, which in some cases is low enough to make them ignorable by the rich, within that upper limit, the law already recognizes that equality before the law doesn’t mean “same $ amount for everyone”. E.g., for federal fines, see 18 USC § 3572(a): “In determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider […] (1) the defendant’s income, earning capacity, and financial resources; (2) the burden that the fine will impose upon the defendant, any person who is financially dependent on the defendant, or any other person (including a government) that would be responsible for the welfare of any person financially dependent on the defendant, relative to the burden that alternative punishments would impose; […]”

Equality before the law applies to citizens, not to bank accounts. Take a broader view.

I've been thinking about this a lot lately because I have a friend who always discusses equality when we talk about taxes. What makes numbers so equal in the minds of humans? Especially when it comes to fines, taxes, etc.? If we still punished people by cutting off their hands (THANKFULLY WE DON'T - but humor me) would be equal to just cut off any part of the arm longer than 24 inches? No, effect was what made it equal, cut off the hands so you can't use them anymore. The example is gruesome but makes it pleasantly obvious that raw numbers are only equal if we all make the same amount of money and have the same costs in our lives. Since we don't I don't think there is anything equal about fixed amounts of money.

> Ideally the amount would scale with your size/wealth.

That would quickly lead to poor individuals and non-profit companies trying to transfer the benefits of their low-cost infractions to others.

If you make sure the fine is some multiple of the damage, including the chance of being caught, then for most situations making it into a transaction would be acceptable.

> As always, if a fine is only a fixed amount it becomes just a regular transaction for the rich. Ideally the amount would scale with your size/wealth.

That's a great rationale right up until the point that a court finds the company in contempt of the original judgement[1]. In this case you don't need the penalty to scale - you don't even need the penalty at all - the order most likely says something to the effect of "stop the infringement".

[1] The order most probably read like "Pay the fine and stop the infringement". Simply paying the fine doesn't allow you to ignore the second part of the order, and the penalties for contempt of court are enough to sink the company. Just ask Gawker, who went under not because of what they published, but because they ignored a court order that ordered them to stop publishing it.

Not a lawyer, but based on the last paragraphs of the press release here: https://www.dynamic.ooo/press/groundbreaking-acknowledgment-... it seems that they have been ordered to comply within 7 days, so going over that would probably mean that they would also be in violation of a court order, along with the fines.

Seems like the amount was decided by the court. Presumably they would have just levied a larger fine if it was a business that might plausibly just ignore the order and keep infringing on the license

Yeah, the courts generally ramp up non-compliance damages like that with continued non-compliance.

If they don't care about money, why not license the code from the author?

Unlike in the US, in Europe we don't have the concept of punitive damages. Claimants will only ever get, at most, a compensation for the losses they can prove they have had and fines go to the state, not the claimant.

Somehow I dont believe that. So copyright infringement is just treated as lost revenue? I thought the music and film industries got you too.

maybe, maybe not. The EU is not a single country.

what they said is likely misleading. punitive damages can come substantively in differing forms and guises

Unless you sell/distribute pirated materials, yes. If you download pirated material from a random https mirror, then all they can come for you for is the lost revenue. If you use torrents it gets more difficult since you're seeding the material

As far as I understand that's how the US works too.

Penalties only for distributing is quite different from no penalties at all.

This is false. https://www.pinsentmasons.com/out-law/news/punitive-damages-...

Punitive damages in terms of IP are allowed in the EU, but up to individual member states. Ireland and Cyprus currently allow punitive damages as did the UK did when it was a member.

Do you have evidence that the fine is fixed regardless of the company size? Because the company in question here is a single employee shop according to D&B Business Directory.

https://www.dnb.com/business-directory/company-profiles.nerd...

Note, the degree of the infringement would be considered in any future case. A more serious usage, and more commercial leverage of it, would likely result in higher fines. Courts take a dim view of companies taking the fines as a "cost of business" rather than a deterrent.

Back just before marijuana was made legal here in Canada a number of Pot shops opened up. The city and police mostly did nothing but decided they would make some by-laws to make sure certain things were in place and it wasn't just people running it out of their houses. One such requirement was that each shop had a front business window into the shop. A guy I knew who had leased a place and set up shop did not have such a window just a door. The city made the rules after he had set up shop so he was not happy and did not want to move his business. So he ignored the requirement until city by-law officers showed up to enforce it. They gave him a $150 a day fine for not complying. He just shrugged it off and counted it a part of doing business since he was making thousands a day.

Is the rule still in place? Is he still ignoring it?

Code enforcement people aren't stupid. They can and likely would escalate in that sort of situation.

Depending on the jurisdiction you can sue later if they don’t comply. Then they would be in contempt, which involves much more severe sentences than a €100/day fine.

The corollary: reasonable people avoid GPL code at all costs.

It's not that hard to comply with the GPL.

I'm sure there will be a few people here that are much more knowledgeable than me in all things licenses and GPL, so if I may:

WordPress states the opinion [1] (I'm not aware of changes on that claim) that the PHP code in themes and plugins are derivative works of WP and therefore must be GPL (or compatible) because the PHP parts of themes/plugins are "combined" with the rest of WP at run time.

Is that (still) a common opinion on the matter? Has it been tested in court?

[1] https://wordpress.org/news/2009/07/themes-are-gpl-too/

This seems analogous to the readline/editline issue (which I think has not been tested in court either, but I’d be fairly surprised if rms’s position [that optionally linking to readline means your work must be released under GPL] would be sustained.)

If it mattered to me, I’d have a close look at the recent Java API case and see if that gave guidance in the direction that a generic (but functional) Wordpress theme that was engineered from the ground up without copying Wordpress GPL code would be in the clear legally.

I’m not a lawyer, but I’d be betting in that direction.

Thank you, the Java API case is a good hint.

The combined ball of WP and a plugin might be GPL, but that's not how it's distributed, is it? A plugin separate from WP is unrelated to WP except for API.

I think the large news here is that there haven’t been many rulings. And for the companies like mongo and elastic that have changed their licenses, this likely gives them more teeth

That's ridiculous. If the GPL weren't valid, then you have no right to copy the code under normal copyright law and the Berne Convention, and thus you're breaking the law.

In the US I believe the charge tends to be somewhere in the $150k per copy, so if you use a GPL, don't agree to the license, and sell 1,000 copies of your sofwtare, you're simply distributing "pirate software", and should be on the hook for a $150m fine.

I don't know if Italy has similar statutory damages

Just because a license says something doesn't make it enforceable - though, thankfully, the GPL was found fully enforceable in this case.

Something to ponder though is whether an open-source license could, potentially have unenforceable clauses on it. I think it's unlikely, but if a part of a major open-source license was found unenforceable (i.e. the definitions of networking in AGPLv3?) the open-source ecosystem would be thrown for a loop.

So much of the open-source ecosystem (and it's contributions!) rely on the licenses being valid legally. I would just say that there are some licenses (AGPLv3 in particular) that are so long and verbose there's bound to be something that could be twisted into unenforceability.

Certainly there could be unenforceable clauses---one Fortran compiler I ran across years ago had a clause saying it couldn't be used for "military purposes". That would be so vague I can't see it being enforced. (It also makes it not Open Source, so there's that, though.)

Copyright licenses aren’t EULAs. You can’t tell an end user of the software how to use the copyrighted art. It only affects distribution where copyright law operates. If I don’t distribute the software, i don’t need to abide by a copyright license. It also only covers the person doing the distribution.

Depends on jurisdiction. In EU some goof decided that the transient copy/copies your computer makes to run software constitutes copying, and therefore you must have a license to use software.

Open source licenses restrict themselves to distribution, but it's not the only thing possible. Distribution is you getting a copy, if you don't comply with the license, you return your copy to the author.

The site has failed under the load from HN. Here's a mirror http://web.archive.org/web/20211224205455/http://ifthisbetre...

I suspected the hug of death would cause this site to fall over. Right after it was posted I linked an archive link [0]. However I started getting downvoted so I deleted my comment. Not sure what was wrong with doing that.

[0] http://web.archive.org/web/20211227162115/http://ifthisbetre...

https://webcache.googleusercontent.com/search?q=cache:http:/...

archive.md also shows bandwidth limit exceeded version

> [The court ordered] that they publish an excerpt of the order on a page of their website, as well as a reference on the site’s home page that’s displayed in double the normal character size of the site.

It's there on the front page, but the headline certainly isn't double the size of the rest of their (obnoxiously large) headlines -- it's far smaller than the rest.

Also, it is (of course!) buried at the very bottom of the front page -- and since that's one of those "modern Web design" eternal-doomscroll pages, I bet 99% of visitors to the site won't even see it, because who can be bothered to scroll all the way to the bottom of those?

It's not that if you are a company you can download a car

If you don't know what "downloading a car" is referring to : https://www.youtube.com/watch?v=HmZm8vNHBSU

Ah it was steal a car, what a pity :D

Of course I know what it is, because I took my perfectly legal DVD of a film that I spent money on a few years ago and popped it in my player, and it forced me to watch it.

I then went onto piratebay to get a copy of the film without it.

It's ridiculous showing such an advert to people who have already given you money, I have no idea what was going through their heads.

(It's been many years since I bought a DVD. I stopped buying family guy seasons because of that type of behaviour. Yes I could rip the dvd and remove it, but then that's illegal, so I may as well go the whole hog.

Don't forget that in the current society you're guilty until proven innocent

I prefer the one from "The IT Crowd": https://www.youtube.com/watch?v=ALZZx1xmAzg

I never seen it, but I prefer it too now :D

The actual case is a bit less black & white. What happened was that two developers left a company and then effectively forked and repackaged the GPL software they had worked on at the previous outfit - and sold it also as GPL. The original company sued them for failing to mention that it was a derivative work of their original code, as the GPL would require.

It's a bittersweet ruling: yes, GPL terms were found enforceable in Italy, but in practice the little guys got shafted over a technicality (and arguably against the original spirit of the license).

> but in practice the little guys got shafted over a technicality

To me it looks like two software developers struck out on their own and got sued by the remaining 2-4 people - not exactly a David vs. Goliath situation.

The vast majority of companies have less than 10 people. Just because those formed a company does not mean they are Google.

That's great news, and the fine is pretty decent!

The person or people running that website are a tad obsessed with a certain somebody.

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