Implications of a licensee’s failure to ask the right questions is playing out in a California court room in ongoing litigation between Artifex Software, Inc. (“Artifex”) and Hancom, Inc. (“Hancom”). Artifex is the owner of a popular PDF software, an Adobe alternative, known as “Ghostscript.” Complaint for 1. Breach of Contract, 2. Copyright Infringement & Demand for Jury Trial at ¶ 1, Artifex Software, Inc. v. Hancom, Inc., No. 3:16-cv-06982 (N.D. Cal. Dec. 5, 2016). Artifex offers Ghostscript under both a proprietary license, for those who wish to incorporate Ghostscript into a licensee’s commercially distributed products, and under a GPL open source license. Id. In its complaint against Hancom, Artifex alleges that Hancom used and incorporated the freely available (GPL-licensed) version of Ghostscript into Hancom’s own commercial software called “Hangul” and that Hancom then failed to abide by the corresponding obligations under the GPL license. Id. at ¶ 2.
Under the GPL, Hancom’s use of Ghostscript required it to distribute the source of Hangul along with the product. Id. at ¶ 24. Distributing the source code for Hangul would clearly be to the great detriment of Hancom’s ability to monetize their product. Artifex argues that Hancom’s failure to distribute this source code breached Hancom’s license to use and distribute Ghostscript under the GPL, triggering a termination of the license. Id. at ¶ 25, 27. Hancom’s refusal to cease its actions led Artifex to seek a legal remedy.
This case exemplifies the caution licensees must exercise and the questions a licensee must ask. Licensees must first ask whether a dual licensing model exists. If so, a licensee must then weigh the two license options and ask which set of underlying obligations inherent in the particular licensing option permits the licensee to use or incorporate the software in a way that fits the licensee’s intended purpose. After selecting the licensing option that best aligns with the intended use, a licensee must be sure to ask if any future license obligations exist. Licensees subject to future license obligations should then work to implement a sensible plan to monitor and ensure license compliance.
A licensee must remember that just because software may be freely available, it does not mean there are no obligations. Unknowingly or negligently using software subject to a restrictive open source license such as the GPL may create unintended consequences for licensees who fail to understand the underlying obligations. A licensee prepared to ask the right questions is the most equipped to avoid compliance issue and avoid costly compliance failures.
 It is unclear if Hancom intentionally misused the GPL licensed Ghostscript or if Hancom simply was unaware of the infringing nature of their use of Ghostscript due to lack of awareness of which licensed version of Ghostscript Hancom was incorporating into their Hangul product. In either case, the end result is a breach of the GPL.