US District Court Rules GNU GPL is an Enforceable Contract

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The history of open source is long and full of legal questions. The first version of the General Public License, which is one of the most common licenses, was published in February 1989. Since then, it has been widely used in free and open-source software (FOSS) and commercial products. Possibly the most famous GPL project off all time is the Linux kernel, that has been later adapted to be the heart of Android — now the most popular mobile operating system of all times.

GPL projects are used in many free and commercial applications. The GNU GPL license requires developers that use the GPL-licensed software to adhere to its licensing. A developer modifying GPL-licensed code must release a source if he or she releases a project to the public. For instance, a custom Android kernel based on the official one must be an open-source project too, and the source must be made available to those that request it.

GNU GPL must always be free

A South Korean developer company called Hancom, decided to use the source code of PostScript and PDF interpreter Ghostscript. The latter is an open-source project that uses GPL as its license. The specific Ghostscript licensing thus obliged Hancom to do one of two things: the South Koreans could either open the source-code of Hancom Office suite, or pay a licensing fee to Artifex. Hancom Office is free to install, although it remains a commercial product and its developers intend to profit from it. So far, the application was installed more than 100,000 times.

Ghostscript has been part of Hancom’s software since 2013. The company didn’t open the source code or pay the fee, so Artifex decided to fill a lawsuit against them. A trial took place in the US District Court for the Northern District of California.

In the complaint, the Ghostscript creators expressed their concern about the infringements of the GNU GPL and Artifex’s copyright. Artifex wanted Hancom to pull the code of Ghostscript and pay a “reasonable royalty”.

Hancom reportedly made $86.3 million in revenue for their products in 2015. The South Korean company refused to pay, and issued a motion to dismiss the case. As a reason, they said that the company didn’t sign anything so the license wasn’t ‘a real contract’.

The GNU GPL is often belittled and ignored by companies, even some of the bigger ones. To illustrate the problem we can look at the smartphone OEMs and SoC producers, who often refuse to distribute the source code they are obliged to provide. In the past, XDA made several public call-outs to OEMs to who don’t adhere to the rules established by GPL licensing. Unfortunately, there is still a number of smartphone producers that do not take the GPL seriously.

The enforceability of open source licenses like the GNU GPL has remained a legal question for a long time. The Federal Circuit Court of Appeals held in a case in 2006 in which Robert Jacobsen sued Martin Katzer for copyright infringement, and Artifex v. Hancom is another big case that can possibly change the general perception of open-source contracts.

Wake up call?

Judge Jacqueline Scott Corley, in her order on the motion on April 25, said that one doesn’t need to sign a contract to be legally bounded to open-source license requirements. Judge Corley stated that “[the] Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the [GNU GPL]. These allegations sufficiently plead the existence of a contract”.

As a result, the federal court ruled that an open-source license is, in fact, an enforceable contract. This is a small victory for the open-source community, as this case sets a precedent that shouldn’t be ignored. It’s still uncertain whether Artifex will win or not, but the ruling shows that the GNU GPL should be treated seriously. We will keep our fingers crossed, as this means that big companies that refuse to release the source code they owe customers could be finally sued.