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Suppose I want to use GPL-copyrighted software in a closed-source project. With actively maintained projects I can contact the copyright holders to see if I can work out an agreement with them. But what about abandoned projects? Imagine the following scenario:

  1. I clone the abandoned GPL repository and publish it with a MIT license.

  2. I notify the copyright holders that I re-licensed their work, using whatever contact information is available. If they reply and oppose, I simply remove the repo, or put the GPL license back.

  3. If I get no reply, I go ahead and start working on my commercial software referencing the MIT repository.

When my commercial software is released, if the original copyright owners show up claiming their rights, I invoke the laches defense, arguing that the late action of the copyright owners now causes undue financial harm.

Would the re-licensing of the original GPL repo be considered the violation that sets starts the clock for the laches (and later, the statute of limitations) in this case?

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  • Comments are not for extended discussion, even when the discussion is wide-ranging and interesting, as this one seems to me to be. This conversation has been moved to chat.
    – MadHatter
    Mar 30 at 13:42
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The GPL, and software licensing in general, must be understood in the wider context of copyright.

  • Only the copyright holder of a software can issue a license.
  • You have no rights to the software, except through the license (and except for copyright exceptions in your jurisdiction).
  • The GPL does not give you the right to re-publish the software under any different license.

The remainder of your question is a creative argument that copyright could be forfeit by an inactive copyright holder. Indeed, it is a problem when copyright holders cannot be contacted. Copyright protected works where the author is unknown or cannot be contacted are called orphan works. Some countries have special laws that do offer some copyright exceptions for orphan works, but usually just to non-profit uses like in museums or archives.

I think your plan will run into the following problems:

  • Only the copyright holder can issue a license. You are not the copyright holder and therefore cannot issue the MIT license, regardless of whether the GPL is in effect or whether the copyright is actually enforced. But this detour over the MIT license is a red herring. It does not bring you additional rights. Directly including the GPL software in your proprietary software would have the same effect of a copyright violation.
  • You are planning to commit a copyright violation, and to stop the violation when caught. This has the critical flaw that the copyright violation was already committed. This might happen quickly enough that your laches defence wouldn't apply.
  • Since you are doing this copyright infringement wilfully and for commercial gain, there might be a public interest in pursuing this as a crime, without involvement of the copyright holder.
  • You are trying to bypass copyright law, even though there is legislation that provides an actual path to use the work (wait until expiry of copyright, or find an actual copyright exception, or use an orphan works mechanism). Additionally, you were offered to use the software through the public GPL license, but declined this license. It is very difficult to argue that you should be able to bypass laws and licenses just because you don't like them.
  • Requirements for a laches defense differ drastically between jurisdictions. In general, it is required that the plaintiff did not take action although they knew or should have known about your violation. You are trying to ensure this by notifying them through any available contact information. However, this might not work. For example, I cannot be expected to know about a letter to a decade-old address. Thus, the period for laches would likely begin when the copyright holder actually learns about your violation.
  • Furthermore, the common law laches doctrine generally requires that the defendant was acting in good faith. Laches cannot protect wilful infringement. Yet here, you are proposing wilful infringement.
  • While a successful laches defense might save you for past infringement, you would still have to cease the copyright violation from then point onward.
    1. The laches defense relates to your purported infringement, not the copyright itself. Copyright cannot be forfeit except through expiry (or in some countries: some act of dedication into the public domain). There is good caselaw that publishing software under an open source license is not a public domain dedication. Thus, I think your use couldn't invalidate the copyright and at most provide a temporary defense for your violations.
    2. Laches does not generally prohibit injunctive relief against future infringements. Your argument that stopping future violations would cause “undue financial harm” is unconvincing since you knew from the start that you had no right to use the software, and furthermore since licensing a different software library instead would not cause undue harm. However, you might be safe from injunctive relief if any future legal action against you would be covered by the same laches argument, or if future action would relate to the same infringement. Here, the interesting question would be if only the original act of incorporating the GPL-covered library was the infringing event, or also each later act of distribution.
  • There is the GPL-specific problem that recipients of the GPL-covered code might be third-party beneficiaries of the license, and could therefore have standing to sue you for compliance (but not for copyright violation). But as far as I know, this theory hasn't been tested.

In practice, any larger community-driven GPL project has contributors (and therefore copyright holders) that are unknown or cannot be contacted. From a software freedom perspective this is a good thing, since it makes it impossible to change the license to a more permissive one without removing their contributions.

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  • 14
    TL;DR: Adverse possession is for real estate, not copyright.
    – Kevin
    Mar 28 at 0:09
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    "you would still have to cease the copyright violation from then point onward" - that's now what happened to James Bond movies: Sony didn't stop making new movies after 1976. Mar 28 at 11:32
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    @DmitryGrigoryev Re Danjaq v Sony: consider reading that ruling in detail. Laches applied due to evidentiary prejudice: over the decades, evidence in favour of the defendant had disappeared. Economic prejudice is also mentioned, but building a billion dollar movie franchise is very different from linking a software library. The plaintiff also couldn't to show wilful infringement (the defendant was likely acting in good faith), whereas you are proposing wilful infringement. Finally, laches doesn't generally bar injunctive relief, but did in this particular case due to evidentiary prejudice.
    – amon
    Mar 28 at 14:34
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    @DmitryGrigoryev Sony didn't stop making new movies after 1976 because McClory and co. "abandoned their attempt to enjoin the release of The Spy Who Loved Me"; when he finally pushed it, "there had been a delay of at least twenty-one years — and more likely, thirty-six years — between McClory's knowledge of the potential claims and the initiation of litigation."
    – prosfilaes
    Mar 28 at 19:03
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    @DmitryGrigoryev See §109 UrhG: if there's a public interest, the public prosecutor can act on their own, without waiting for the copyright holder. Also, lots of criminal offences are listed in there, e.g. §108a up to 5 years prison for commercial copyright infringement. My point about third party beneficiaries relates more to contract law than to copyright law.
    – amon
    Mar 29 at 15:42
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Copyright does not allow for that. You need to wait 70 years after the copyright holders' deaths to do this.

In that respect it is no different from a closed source license: If you want to change the license, you need permission.

Back around 2000 Larry Lessig had a lecture where he explained there are may works, where we cannot contact the author (https://en.wikipedia.org/wiki/Free_Culture_(book)#Chapter_13._Eldred). IIRC some of these works were films, that a company wanted to restore and then publish to the world. But since they could not get permission they did not dare risk going ahead, and some of these films are now so deteriorated that they no longer can be restored.

Lessig argued for a copyright reform, so you would have to be contactable or lose the right - which is basically what you are also arguing for.

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    But the main difference between closed source things and open source things is that the open source license removes the need to contact the author. They've already given you enough rights for most things. If there's no legal need to make yourself contactable as a copyright owner, there's definitely no need to make yourself contactable so that people can be given special exceptions to the general open source license you published your work under! Mar 28 at 1:14
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    The 70 years period is only effective if the authors actually sue those who infringe their copyright. That's the whole idea: to commit a minor violation that would be inexpensive to fix if necessary, yet it will start the timer for the effective rights to expire much sooner. Mar 28 at 11:56
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    @DmitryGrigoryev that sounds like you’re saying “speeding is only illegal if you’re caught” which is obviously wrong. Speeding is still illegal.
    – Tim
    Mar 28 at 23:08
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    @Tim Speeding is a good comparison: it's illegal, but you can't do anything about it as a fellow driver. The same is true for a GPL violation: unless you're the copyright holder, you can't even report an offending repo on Github. Mar 29 at 7:48
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    @DmitryGrigoryev sure. Doesn’t make it legal. As you’ve been told repeatedly: your plan is to knowingly commit copyright infringement. That’s not right.
    – Tim
    Mar 29 at 8:20
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There are ways around this, depending on the version of the GPL.

Earlier versions of the GPL made it possible to build the code into a standalone executable or a DLL which could be dynamically linked. With a suitable license you could legitimately fork the software, maintaining its GPL license, and being careful with how you call/execute that code. You would have to release the changes you make on that fork, as usual, but the "secret sauce" of your application will be the code you've written from scratch on top of these libraries, and releasing the GPL'd libraries will not make your own application less "open".

Later versions of the GPL do not permit this, requiring you to GPL your application as well if it calls or executes GPL code in any way. You'll need to check the details of exactly which GPL license you're dealing with.

The license on the open-source code may not be changed. Simple as that.

Laches, in my understanding, requires the copyright owner to have known of your fork and actively delayed taking action. If you actively conceal the fact that you have broken copyright and used this code, it cannot apply.

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    If I understand you correctly, you maintain that (for certain versions of the GPL) you can lawfully build GPL code into a library, then dynamically link a proprietary application to that library, and distribute the resulting executable. Do I understand you correctly, and if so, which version(s) of the GPL do you feel this is true for?
    – MadHatter
    Mar 28 at 10:29
  • opensource.stackexchange.com/questions/4106/… Maybe depending of the version of the GPL license. Or you might be able to write your software in a way that spawns a GPL binary without linking which would be needed if the GPL is v2.0 or later. If the original was a library, perhaps its LPGL. I think that linking GPL is only possible in GPL v1 before GPL and LGPL separated
    – camelccc
    Mar 28 at 17:32
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    GPLv2 came out in 1991, and I know of no software that is still released under GPLv1, so we can ignore that. As for GPLv2 and v3, while there are arguments both for and against dynamic linking creating derivative work status, the arguments in no case depend on the difference between v2 and v3. I am therefore unpersuaded by your position.
    – MadHatter
    Mar 29 at 6:35
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    "... requiring you to GPL your application as well if it calls or executes GPL code in any way" Simply executing a GPL'd application as a separate process does not necessarily require you to GPL your application. It might, depending on how intimately intertwined the two processes are. See gnu.org/licenses/gpl-faq.html#MereAggregation
    – jamesdlin
    Mar 29 at 6:44
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    @jamesdlin: Rather than having a vague "let judges sort it out", the GPL should have specified that if an aggregation includes GPL code, it must include sufficient source materials and documentation to allow someone of reasonable skill to modify the GPL portion and build it in such as a way as to allow it to be used in place of the original.
    – supercat
    Mar 30 at 17:58

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