Friday, May 19, 2017

Artifex v. Hancom - OSS as Copyright or Contract?

I ran across a very interesting article the other day (Keith Collins as published in Quartz on 11 May 2017).  It discusses a recent case filed in the US District Court for the Northern District of California, Artifex Software, Inc. v. Hancom, Inc.

The gist of the dispute involves a software component published by Artifex under the GPLv3 open source license.  It was also made available under a proprietary commercial licensing option for consumers wishing to commercialize the component.  Hancom apparently wanted the best of both worlds, used the software under the terms of the GPL, yet refused to follow the terms regarding publishing derivative and or combined works under the GPL.

Artifex filed suit resulting in an interesting court order in response to Hancom's motion to dismiss.  Essentially, Judge Jacqueline Scott Corley ruled in part that Artifex could pursue its claim under a breach of contract theory. 

Defendant contends that Plaintiff's reliance on the unsigned GNU GPL fails to plausibly demonstrate mutual assent, that is, the existence of a contract. Not so. The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNL GPU. These allegations sufficiently plead the existence of a contract. See, e.g., MedioStream, Inc. v. Microsoft Corp., 749 F. Supp. 2d 507, 519 (E.D. Tex. 2010)(concluding that the software owner had adequately pled a claim for breach of a shrink-wrap license).

This appears to be a new approach in these types of actions which are more often discussed in solely terms of copyright violations.

It will be interesting to follow this case and see the ramifications to the broader interests of open source publishers and their ability to enforce the terms of the licenses chosen.

Stay tuned....