October 27, 2008

Alleged Israeli GPL violation settled out of court

Author: Bruce Byfield

After two years of litigation, the parties involved in an Israeli law suit that centered on the validity of the GNU General Public License (GPL) have settled out of court. The result leaves the legal status of the GPL in Israel unresolved.

As reported earlier on Linux.com, the case began in early 2006 when Alexander Rabinovitch, CEO of International Chess University (IchessU) approached Alexander Maryanovsky, the developer of Jin, a Java-based chess client, about writing a chess client and server for IchessU. When Maryanovsky declined, IchessU produced its own software, which Maryanovsky described as "95% my code and 5% theirs."

When Maryanovsky's attempts to discuss the matter in person with Rabinovitch were refused, he retained Jonathan J. Klinger, an Israeli attorney with a familiarity with free and open source licenses and a member of the Electronic Frontier Foundation.

In filing the case against Rabinovitch and IchessU, Maryanovsky claimed that the IchessU software violated the GPL because its copyright refused to give him credit, and because the client was released with a proprietary end-user license agreement. In addition, he suggested that an audio-visual module developed by IchessU was a derivative work, since it could not compile without his code. Maryanovsky also alleged bad faith negotiations and copyright violation. He asked for 110,000 NIS ($25,000) in damages -- an amount deliberately kept small so he could take advantage of a fast-track option that would bring a judgment in 30 days.

Events became complicated because Rabinovitch immigrated to North America, and could not be served notice in the case. Maryanovsky claimed that Rabinovitch discussion of the case with Linux.com was proof that he was aware of the law suit, and filed for default judgment.

However, by this point, Rabinovitch, who earlier showed an inclination not to take the case seriously, had retained Haim Ravia, an Israeli lawyer expert in intellectual property law, and was actively defending himself. By April 2007, Ravia had filed a detailed defense, which suggested that the case "was submitted in bad faith, and without legal or factual basis as a mere publicity stunt. As such, the plaintiff has widely publicized the lawsuit on Internet sites both in Israel and abroad" -- a reference to Maryanovsky's postings on his Web site and his interview with Linux.com.

While the defense showed no deep understanding of the GPL, it had the effect of moving the case out of the fast-track proceedings and into regular court. At that point, Maryanovsky, Rabinovitch, and their respective lawyers both stopped talking to the media, and a news blackout descended on the case for 18 months.

The settlement

News of the settlement finally came in the form of identical announcements on both the Jin and IchessU sites. The announcement is short on details, but, since it is described as mutual, it seems clear that the wording was negotiated between the two parties.

The main focus of the announcement seems to be that both parties went to extremes in discussing each other in public. IchessU and Rabinovich state that:

their conduct in relation to the use of Jin personally hurt Maryanovsky and was against his wishes, and they regret doing so. Mr. Rabinovich emphasizes that IchessU and himself were acting in good faith and in accordance to their legal consultation at the time.

For Maryanovksy's part, he acknowledges that:

his actions in response to IchessU and its manager's use of Jin hurt their business reputation and their name, and he emphasizes that this was not his aim but he was acting in order to protect what he saw as infringement of his rights.

The announcement ends by saying "the parties express satisfaction in ending their dispute and thank their attorneys," and that "the content of the settlement is kept confidential."

The GPL in the case

Although requested to say what they could, particularly about the effects that the case might have on the GPL, those involved are keeping largely silent. Haim Ravia would say only, "Since the parties agreed to keep the details of the settlement confidential, it will not be appropriate for me to relate to this case in any way."

Klinger was only slightly more forthcoming. "The settlement was out of court and therefore does not affect the enforceability of other GPL claims," he told Linux.com. "The only effect it has is on the parties. How other parties may see this settlement is another issue. It might have done some effect on other parties acquaintance with GPL and open source and might cause more interest in open source projects."

However, despite Klinger's statement, it seems that the GPL emerges somewhat stronger from the case. Although short, the announcement goes out of its way to specify that Jin "was licensed under the GNU General Public Announcement" -- a detail that would seem out of place if the GPL and its enforceability was not at the heart of the case. Moreover, since the case lasted 18 months from the time that the defense filed its case, apparently the GPL was not easily dismissed under Israeli law.

However, the most telling indication of what happened in the case appears on the IchessU download page. If you click to download, you are taken to a page that states that the download includes "the IchessU AV program" and "the third party software known as Jin client for chess servers," which is copyright by Alexander Maryanovsky. Click on the end user license agreement, and it turns out to be a standard proprietary license. Presumably, the license refers either to the IchessU AV program or the bundle, since the download clearly states that the Jin client is freely distributable.

The likeliest way to read this information is that IchessU acknowledges borrowing from Jin, and has come into GPL compliance for the client. In return, Maryanovsky seems to have agreed to drop his claim that the audio-visual module is a derivative work. In other words, the validity of the GPL has apparently been upheld, but at the cost of leaving a program uninvestigated that may very well be a GPL violation. Although the question of whether Maryanovsky received any damages remains open, the news that most interests the free software community seems reasonably clear.

If these suppositions are valid, then the Jin-IchessU case may have the same effect in Israel that the cases filed on behalf of BusyBox by the Software Freedom Law Center have had in the United States. In other words, although these cases have been settled before a judgment could be delivered, the fact that defendants chose to settle and come into compliance creates the impression that the GPL cannot be contested. The result, with any luck, will be that others will think twice before others violate the GPL or contest cases that involve it.

If that is so, then the outcome is not as satisfying as a complete vindication of the GPL would be. All the same, it provides a happy ending of a sort -- a qualified one, but, for free software supporters, a happy ending all the same.

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